There's been an issue "lurking" beneath the surface for some time now regarding potential legal liability for public websites. At Doggone Good Technology, we've not only been aware of it, but have been monitoring it for the past couple of years so that we could provide our best considered opinion and subsequent advice to our clients. So, short of outright fraud or other deceptive business practices, what could possibly make your business website a potential legal liability? How about the Americans With Disabilities Act (ADA)? That's right, just like public "bricks & mortar" business locations are subject to "access requirements" for the disabled, according to prevailing legal interpretation, so is your business website. It's being defined as a public place where equal "access" must be available to a wide scope of potential customers including those with physical disabilities. Without attempting to describe the more intricate details of what this means, let's just say that a large portion of current websites don't fair well when trying to accommodate those with visual, auditory, neurological, or other impairments. There are solutions, but they're not necessarily, easy, nor commonly employed in most business websites.
So, what's the risk? And what are the consequences?
In early 2021 when this issue started to become more publicly prominent, Doggone Good Technology evaluated the landscape and we proactively communicated our assessment to our website clients. In summary, we said, at the time, that "This is an evolving issue that at present poses an only sporadic risk for you and your websites". And, we provided options including doing nothing vs engaging a paid service to "demonstrate" that you were aware and engaged in providing access to those who may be disadvantaged and were seeking information from your website. We saw this as an entirely optional choice based on your individual risk tolerance. Mind you, "risk tolerance" is a uniquely individual determination of the likelihood of an adverse outcome vs. the consequences if a bad outcome occured. Our feeling was that the likelihood of being sued for your small business website was small, the probability of a significant adverse outcome was also small, but - of course - if the outcome was bad, it could be significantly bad. As such, we provided recommended options including doing nothing vs engaging a paid service to "demonstrate" that you were aware and engaged in providing access to those who may be disadvantaged and were seeking information from your website.
But now in mid-2022, we feel the landscape has changed. First and foremost the U.S. Dept of Justice has issued a "guidance" regarding website compliance with the ADA. In our experience, when a federal agency issues such a guidance it tells you two things - (1) that the issue is on their radar, and (2) the "guidance" tells you exactly what they're going to go after in investigations. Such a guidance also provides legal support for the more aggressive law firms who are focused on this issue as an "easy target". In our opinion, "doing nothing" to bring your business website into greater compliance with what is an admittedly ill-defined set of standards is no longer an option. Just a little over a year ago, we thought doing nothing was still OK considering the odds. No longer. Today, we believe that you must take steps - be they simple and inexpensive, or more intensive and more expensive - to demonstrate your business' committment to accessibility to your business website for all. While there are a variety of options, they don't have to be laborious and expensive, but they do need to demonstrate a real effort to make your website content more accessible to the disadvantaged.
If your web developer hasn't broached this issue with you, it's best if you ask him/her about it. If you built your own website with a DIY platform, you're best off getting some advice from a competent source.
As always, you can feel free to reach out to us at Doggone Good Technology for free advice.
