Liability or No: Should You Sue Your Web Services Provider for Inaccessibility?
This article is merely commentary, not legal advice. This is an opinion article based on a general and hypothetical fact pattern and should not be relied upon as a defense or as a sole grounds for not bringing suit. Always consult an attorney regarding your specific situation as all situations are unique.
Designers, developers, website managers, digital marketing agencies, etc. all want to know if they’re liable for past (and maybe present) services that aren’t accessible / WCAG conformant / compliant.
Their clients are increasingly being sued for discrimination under various laws — the Americans with Disabilities Act (ADA), California Unruh Civil Rights Act, New York Human Rights Laws, etc. — and their clients are looking for someone to blame.
But does the blame go to the providers?
Generally, unless a vendor openly claims accessibility as a feature or has an agreement with a specific provision for accessibility / WCAG implementation, there should be no liability for digital agencies.
Why?
One Reason for No Agency Liability
The primary reason (and most compelling legally) is that web accessibility is very much a specialized and separate service that was likely not contemplated, relied upon, and/or expressly written into the original contract for web services.
If it had been, client price quotes would have been notably higher.
Making or providing a website, app, software, or document in conformance with WCAG 2.0 AA or 2.1 AA requires someone with highly specialized skills and knowledge.
Remediation (fixing a website to be accessible after the fact) not only requires specialized knowledge but significant resources in the form of time, money, and energy to fix the website.
All this is to say that accessibility likely wasn’t part of the original bargain.
Illustration:
You originally agreed to pay for a custom Wordpress website that looked a certain way and had certain functions (e.g., account registration, newsletter sign up, checkout, etc.). The price was $4,500.
Nowhere along the way was accessibility or WCAG mentioned.
The website looks and functions as expected but contains many accessibility issues.
There’s no cause of action for breach of contract in this scenario.
As a client, you got what you bargained for: a seemingly functional (maybe not to screen reader users, etc.), well-designed Wordpress website. No accessibility measures were taken because both parties were silent on accessibility.
Another Reason for No Liability
Flowing directly from Reason #1, accessibility was/is an outside-the-norm consideration depending on the industry.
In the present, we increasingly witness WCAG conformance / accessibility being required of vendors, but even just a few months ago it wasn’t on the radar for many providers in the industry.
Legally, this speaks to the prevailing industry culture, which is a key consideration when interpreting contracts.
Prevailing industry culture helps courts interprets contracts. It helps them understand what things are implicit (implied despite no express contractual provision) vs. what things are outside the norm and must be written into the contract.
Illustration:
A well-coded website is implicit in a contract for having a website built. No one signs up for a poorly coded website. Thus, we expect website providers to use properly structured HTML; it’s standard practice.
It’s certainly a prudent move to write good coding into a contract but it likely doesn’t need to be in place to have a cause of action for a poorly coded website.
On the contrary, accessibility hasn’t been standard practice. We can look to any number of markers — including the fact that the vast majority of the web still doesn’t have critical accessibility measures addressed — to prove this.
Third Reason Agencies Shouldn’t Be Responsible
And my second reason leads to my third: Hardly anyone knew about accessibility.
Even today, when I tell people about my work, I get asked, “You can make a website accessible?”
Many people still don’t even realize web accessibility exists. And even more people were unaware months and especially years ago.
It’s only recently, because of the serial litigation and the numerous well-known defendants (e.g., Pizza Hut, Beyonce), that accessibility is now becoming more of a talking point.
Also, no law or regulation has actually been published.
Yes, the DOJ has taken some private enforcement actions, filed Statements of Interest in various lawsuits, and published an Advance Notice of Proposed Rulemaking.
But here’s what the DOJ didn’t do: create actual regulation.
To this day, there is no federal law in the U.S. that expressly mandates web accessibility for private entities who aren’t implicated by Section 508 and 504 — which is the vast majority.
So, no, the DOJ didn’t put us on notice.
What put us on notice was serial litigants sending out demand letters and suing entities to the point where major industries were rocked so hard, accessibility became a major topic of discussion.
What’s made accessibility mainstream is that small businesses and sole proprietors without deep pockets are now also being sued to the point where their operations have been put on the brink of existence.
And so my third point is that it’s likely that neither you nor your web provider were even aware that web accessibility is/was/would become a de facto legal requirement.
Fundamental Fairness
One day, all notable and legitimate web stuff will be accessible.
This needs to happen.
People with disabilities have a right to the web just as much as anyone else does.
I actually don’t like writing that last line because it shouldn’t be necessary to say; it should just be common, everyday knowledge.
But the thing is, it’s not.
And there’s usually no maliciousness behind the lack of awareness; many people simply don’t think about it.
For this reason, we need to lay the groundwork for awareness (knowledge) and implementation (action).
The proper foundation would be creating a law mandating digital accessibility. The law would be announced, publicized, and provide a reasonable amount of time for compliance before it goes into effect.
Lawsuits, while effective in spurring accessibility, are absolutely the wrong medium to accomplish this.
Lawsuits divert money that could go toward accessibility (remediation, training, innovation, etc.) into the legal sphere, mainly plaintiffs’ lawyers pockets.
Lawsuits also unfairly and harshly penalize entities for being unaware of law that doesn’t exist.
That’s wasteful. That’s inefficient. That’s a misalignment of purpose.
Lawsuits should be brought when entities fail to comply with the law — the future law that expressly mandates web accessibility, how to comply, and what constitutes an infraction.
We don’t need any more demand letters or lawsuits.
What we need is formal regulation.
When clients seek to pass the responsibility to their web providers, it’s perpetuating an inefficient litigation cycle that tremendously benefits plaintiffs’ law firms.
In Sum
The blame in the litigious United States web accessibility landscape falls at the feet of the government.
Congress and the DOJ could have and should have made provisions for digital accessibility two decades ago (WCAG 1.0 was published in 1999).
The problem is they are the sovereignty so what can you really do when government fails?
Adjust and move forward the best you can.
As for private entities, it’s very clear that digital accessibility is required based on the legal landscape.
As for disputes between web service providers and clients that never contemplated accessibility, it’s matter of contract law.
Absent any accessibility claims, express contract provisions, and/or special circumstances, web service providers should be free of liability.
This article is merely commentary, not legal advice. This is an opinion article based on a general and hypothetical fact pattern and should not be relied upon as a defense or as a sole grounds for not bringing suit. Always consult an attorney regarding your specific situation as all situations are unique.
