New California Bill on Web Accessibility Considered for Approval
The entire content of an existing bill on courts was replaced earlier this month, on the 12th of June, by the California Assembly’s Judiciary Committee, to address the issue of accessibility on internet websites. Assembly Bill 1757, which addressed the topic of court consolidation, was replaced with the text of Assembly Bill 950 which had been considered for approval earlier this year but ended up dying in the Assembly Appropriations Committee after the Committee found in their analysis that such a bill would generate significant costs for the Trial Court Trust Fund and the General Fund.
The new AB 1757 proposes significant changes to the way accessibility would be managed in the state of California, particularly in connection to the Unruh Act, effectively stating that statutory damages can be claimed from an entity “based upon the inaccessibility of an internet website developed, procured, maintained, or used by that entity if the internet website fails to provide equally effective communication or facilitate full and equal enjoyment of the entity’s goods and services to all members of the public, including any member of the public who is disabled.”
However, for these damages to be claimed, the plaintiff has to demonstrate one of the following cases applies:
(1) That the plaintiff personally encountered a barrier that caused the plaintiff to experience a difference in their ability to access or use the website as compared to other users such that the plaintiff was unable to acquire the same information, engage in the same interactions, or enjoy the same services with substantially equivalent ease of use, or to have the same level of privacy and independence as other users who are not disabled.
(2) That the plaintiff was deterred from accessing all or part of the website or the content of the website because of the website’s failure to provide equally effective communication or to facilitate full and equal enjoyment of the entity’s goods and services offered to the public.
In addition to this, the Bill also allows individuals with disabilities as well as businesses to bring civil action against a “resource service providers” defined as “a person or entity that, in exchange for money or any other form of remuneration, constructs, licenses, distributes, or maintains for online use any internet website or resource to be used within or in conjunction with an internet website,” that knowingly or intentionally “construct, license, distribute, or maintain for online use, an internet website that fails to comply with the internet website-related accessibility standard.”
According to the Bill, “an internet website is presumed to provide equally effective communication for the purpose of determining whether an award of minimum statutory damages is warranted, if the internet website, taking into account the variety of conforming implementations that may be used to meet the internet website-related accessibility standard, complies with the internet website-related accessibility standard,” which it defines as “the Web Content Accessibility Guidelines (WCAG) 2.1 Level AA standard for the accessibility of internet websites established by the World Wide Web Consortium (W3C) Accessibility Guidelines Working Group [...] or the accessibility standards for Section 508 of the federal Rehabilitation Act of 1973” and where the two overlap, the WCAG 2.1 standard will apply.
Some of they key takeaways from this Bill are as follows:
- The legal liability of businesses as well as third party web developers would be expanded in light of a requirement that websites and mobile apps comply with WCAG 2.1.
- WCAG 2.1 AA level would become the de facto standard for website accessibility compliance in the state of California. Currently, plaintiffs looking to establish a violation of the Unruh Act have to demonstrate that the website or mobile app owner has violated the ADA Title III. However, the ADA does not mandate level AA of the WCAG 2.1 for website or mobile apps of public accommodations and instead mandates that these businesses have to provide auxiliary services as needed to ensure the effective communication with individuals with disabilities. In light of this, and taking into account that federal government websites are required to comply only with WCAG 2.0 level AA which is less demanding, and many of them still do not according to a report by the Department of Justice, the Bill brings to the table what is considered to be quite the tall order.
- There is no mention of a transition period for businesses to bring existing websites and mobile apps to conformance with WCAG 2.1 level AA. Doing this would most likely require significant amounts of time and resources and, in the case of small businesses, the hardships of achieving conformance could motivate them to take down their websites which would have a negative impact on their day to day business.
- The liability on website and mobile apps developers will result in increased costs for website development. While it may be said that this would provide incentive for developers to create websites that conform to WCAG 2.1 AA, it will also most likely drive smaller web developers out of business.
AB 1757 is in the Senate Judiciary Committee awaiting consideration and if approved and voted by the Senate it will return to the Assembly and then will go on to the Governor for final approval. In its current state, if the Bill becomes law, it is expected that it will drive up the number of web accessibility lawsuits.
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