Everything Advertisers Need to Know About Digital Accessibility and the Law

Masters of Advertising Law Conference attendees: Scroll down for CLE materials

With more than 20 percent of the population self-identifying as having a disability, advertisers need to understand digital accessibility now more than ever. Advertisers increasingly drive engagement online across social, web, email, YouTube, and other digital experiences. Corporations are adopting DEI and ESG initiatives, over 5,000 lawsuits have been filed in the last two years, and over 97 percent of top websites continue to have disability barriers.

Experts shared a review of the state of litigation and regulation, how to properly develop inclusiveness and representation, and how corporations are developing corporate policy to ensure compatibility.

Key Takeaways

Massive digital transformation and digital adoption during the pandemic changed the landscape and now the best brands are finding new ways to be more inclusive. This has become a major opportunity for brands to do the right thing and find ways to be more inclusive to people with disabilities; however, this can be difficult, especially for brands that lack budget when it comes to technological advancements for inclusivity.

For instance, 1 billion people globally have a disability, with 20 percent of Americans self-identifying as such. Further, this community has $2 trillion in global spending power.

In the last two years, 5,400 lawsuits occurred, with an estimated 265,000 demand letters in 2020. This can be difficult territory for brands. Ian Lowe, CMO at Essential Accessibility, and Eve Hill, partner at Brown Goldstein & Levy, shared insights into how to respond to ADA demand letters.

Important questions to ask when receiving an ADA demand letter:

  1. Is it a reasonable demand letter? Is it a mass-filing plaintiff firm? Are the claims regarding barriers or standards violations? Are the claims of barriers tied to specific activities (e.g., completing a purchase)?
  2. To answer these questions, evaluate the technical claims, and if the issues are accurate or false positives. Engage with experts to interpret the results.
  3. After analysis, strategize a potential response. To do this, work with legal counsel to determine if and how you should respond. Remember that "click-by" litigators are looking for settlement and "legitimate" plaintiffs are looking for resolution.
  4. It's important to remember that the ADA does not refer to digital accessibility and ADA compliance is determined by the state of case law.

Action Steps

Case study: Gil versus Winn-Dixie

District Court held Winn-Dixie responsible for making its website (including third-party content) fully accessible according to WCAG 2.0. However, 11th Circuit found that the website's inaccessibility will only create liability where that inaccessibility hampers use of the actual, physical place of accommodation. Eventually, the appeal was found to be moot and vacated decision.

Current state of the law:

Websites of public accommodations are required to be accessible if the websites have a nexus to the physical operations of the public accommodation.

Recommended check list:

  • Post accessibility statement
  • Ensure corporate alignment
  • Assign staff responsibility and authority
  • Audit all sites, apps, and assets (automated and manual)
  • Adopt remediation and new content policy
  • Make high-priority items accessible ASAP
  • Make a plan to roll out other accessible features based on priority
  • Upskill your own developers and content creators
  • Check new content before posting
  • Ongoing third-party verification
  • Require vendors to ensure accessibility
  • Get tuned to key industry trends

CLE Materials

Source

"Everything Advertisers Need to Know About Digital Accessibility and the Law." Ian Lowe, CMO at Essential Accessibility; Eve Hill, partner at Brown Goldstein & Levy, LLP. 2022 ANA Masters of Advertising Law Conference, 11/8/22.

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