In this episode, we discuss the recent class-action lawsuit filed against accessibility overlay company AccessiBe for breach of contract and failure to deliver on its promises of a fully automated accessibility solution.
Listen
Watch
Mentioned In This Episode
- Flying Dog The Truth Imperial IPA
- New Class Action Lawsuit against AccessiBe
- Sherwin v accessiBe (10 July 2024)
- AccessiBe Lawsuit Claims AI Web Accessibility Software Can’t Ensure ADA Compliance as Advertised
- AccessiBe Terms of Service
Transcript
Chris: Welcome to the Accessibility Craft podcast, where we explore the art of creating accessible websites while trying out interesting craft beverages. This podcast is brought to you by the team at Equalize Digital, a WordPress accessibility company, and the proud creators of the Accessibility Checker plugin.
And now, on to the show.
Amber: Hey everybody, it’s Amber and I’m here today with Steve.
Steve: Hey everybody. How’s it going?
Amber: And Chris.
Chris: Hello.
Amber: And we are going to have a fun episode talking about the truth, maybe seeing if we can uncover some truth and drinking, what are we drinking today, Chris?
Today’s Beverage
Chris: We’re drinking The Truth which is a scientifically engineered IPA.
They claim it’s engineered to be the holy grail for IPA lovers. And this is by a brewery called Flying Dog, which I think is a fairly well known one out there. We’re going to,
Amber: In California?
Chris: To try. Yeah. Yeah.
Amber: No, wrong direction. Utica, New York. This is our old Culinary Institute of America stopping grounds.
Not too far. It’s a ways, but it’s a lot closer than we are currently. What is a scientifically engineered IPA? Steve already opened his, he’s ready to go.
Steve: Well, it didn’t have a twist off. I had to do it beforehand.
Amber: What is a scientifically engineered IPA?
Chris: No idea.
Amber: You don’t have a bottle opener, Chris?
Chris: Nope.
Amber: Alright, here. Come I keep one in my desk. I don’t know why you don’t keep a bottle opener in your desk. You need one. A WordPress one. Yeah. Chris is walking away, he turned his camera off, and he’s gonna come get my bottle opener.
Steve: Oh, you’re seeing a little bit of the behind scenes here.
Amber: Behind the scenes. Super fun. See
Steve: Well, while he’s doing that, I want to read the back of the bottle. It says, and this kind of goes with our episode a little bit. We’re going to be doing a little bit of investigating and seeing if we can tell the truth, right? Blessed be the truth teller. The one who tells us not what we want to hear, but what we need to hear.
When the world seems upside down, we count on him to remind us we’re standing on our head. What does that mean?
So if you crave the truth, spend a night with this high octane Imperial IPA, we promise it will keep you honest.
Amber: And it is 8. 7 percent ABV.
Steve: That’s why it keeps you honest.
Amber: There will be no filters on this episode.
Ooh, that’s got really nice head on it. Chris poured it into an Accessibility Craft podcast pint glass, and it looks beautiful. It’s got a reddish color.
Chris: Yeah, it’s got a beautiful color.
Amber: I’m just going to drink it out of the bottle because I’m going to I really like the label. It has a I don’t know, how would you describe this?
Like kind of a grungy watercolor ink illustration of what I’m assuming is supposed to be an attorney. Who looks a little smarmy. But he’s got his hands like clasped up in front of him. Like he’s tapping his fingers. How, I don’t know what this position is.
Steve: Like he’s plotting something. Yeah.
Amber: He’s plotting something and he’s wearing a.
Red and black striped tie with a black suit jacket, and he says, I do solemnly swear
Steve: Yeah, it’s like a ink it’s like an ink pen drawing a fountain ink pen drawing and totally
Chris: Well, I do solemnly swear. I love the nose on this beer It’s very it’s a very herbaceous. It’s not like You It’s not like fruity hop, it’s like herby hop.
Amber: Okay, I don’t always like IPAs as we’ve talked about before, but I actually really like this. I like the flavor on this one. It’s good.
Steve: Yeah, it’s yeah, I don’t typically like the IPAs either, but maybe it’s because this is an East Coast IPA, right? Maybe it’s those stinky West Coast ones I don’t like.
Amber: I don’t know they’re just like more bitter. This is not quite as bitter as I normally expect. IPA to me, but yeah, what, do you get any flavors out of this, Chris?
Chris: It’s hard to get past like just the hop, right? It’s just super hoppy. To me, hoppiness kind of falls into two categories.
There’s like where it’s fruitier and tropical, and then that’s like where it’s really savory and herbaceous kind of rosemary, thyme, like that kind of thing. And I’m, more on that side with this one. I don’t think it’s super fruity.
Amber: It’s yeah, I get what you mean: it’s not fruity, but I don’t get any sort of herb flavors.
Chris: No,
Amber: You get an herb flavor?
Chris: No, it’s just like I don’t know how else to ascribe it But like that bitter astringent like I just associate it with herbs. It’s not that i’m tasting a particular herb It’s just like it’s more on the plant plantish side of hop than the fruity side You And I, but what I do appreciate about this, and I don’t know how this is achieved in a brew, but I do, I like the, I like that it’s like medium bodied, so it’s not like super, runny, like it’s a little thick, little rich, and I do also appreciate that it seems like there’s just like this very slight hint of sweetness behind everything that I think balances some of that bitterness from the hops.
Like it’s just, it’s incredibly subtle, but I feel like I taste just like a little hint. Of unfermented sugar.
Amber: So I don’t know if we’ve had Flying Dog before, but honestly, the flavor of this, it reminds me a lot of the beers that I would drink sitting out on the patio at the Brotherhood of Thieves restaurant on Nantucket.
Like this, like I’m like. This is a good summer, you guys would probably eat a meat burger, I would eat a veggie burger with this outside at a restaurant really nice steak fry, french fry thick ones, right, right. This would go really well with that. So on their website, there’s some beer nerd information, which we should share.
Some breweries are nice and give us that, which the craft ones do. So, so we’ve got it’s got Munich malted wheat. The hops are Woyer, Summit, Columbus, and Citra, and they use. Amarillo American Ale Yeast and it says IBU 80.
Chris: I wonder if it’s the malt?
Amber: That makes it have that flavor? It probably is like the type of wheat or how malted the wheat is.
Chris: Yeah. That’s giving it like that little bit of sweetness in the background or maybe caramelliness. I’m not sure how to put it.
Amber: Actually, you know what I really want with this beer now that I’ve talked about, Nantucket, is a lobster corn dog. Chris?
Chris: Yeah, something fried. This would definitely, if we’re talking about foods that would stand up to this something fried would definitely stand up to this.
I think even a good calamari, chicken wings would be great.
Amber: Chris made these lobster corn dogs. They were so good. So good.
Chris: We’d take we’d take chopped up lobster claw and knuckle meat and mix it with cream cheese and fresh herbs to make a, and then we would freeze it basically. So it’d be like in a little puck basically that we would freeze with a stick in it.
And then we would dip that in cornbread batter and fry it. And then dip, people would dip it in like an herb remoulade. And so it was like a corn dog, but it had lobster and like cream cheese and stuff in the middle. So if you’re into lobster,
that’s
a good way to have lobster.
Amber: Yeah. So I give this a giant thumbs up.
I like the truth and that is the truth. What do you guys think? Is this a thumbs up for you both? Would you buy it again? Steve’s not sure.
Steve: Like it’s an IPA, right? Like it’s got the IP, but I do agree with Chris with the, it does have something that’s cutting it a little bit, something that’s making it not so IPA.
Amber: So you’re in the middle on this one, then I guess.
Chris: It’s balanced, right? It has a couple things going on with it instead of just one thing going on with it, which is I’m going to attach. Hops to the front of a boxing glove with duct tape and just punch you in the face as hard as I can.
And that’s normally what an IPA is.
Steve: Yeah,
this is
good.
Chris: No, I would probably get it again too. It’s like for me, if it was, if I had to have an IPA, this might be the one I would choose from now on. Like it’s really good. It’s really good.
Today’s Topic: AccessiBe Got Sued
Amber: Yep. All right. And because I am a giant nerd who likes it when our beers match our topic, I saw that we were getting a beer called The Truth, and I thought it would be really interesting to talk about AccessiBe, which is one of the leading companies that makes an accessibility overlay.
That purports to fix websites and make them accessible magically with a single line of JavaScript code has received a, very recently a class action. Do you say received or they’re at the end of the class action lawsuit? I don’t know. Do you guys know the legal terms for this?
Chris: They’re on the, they’re on the end of the class action lawsuit that you don’t want to be on.
Amber: They are being sued by many people , but it was in, started by a business owner who used their tool and then got sued. So we’re going to chat about that and maybe a little bit about the truth about overlays as a follow up to our previous overlay episode. Yeah. What was, I’m just curious to start us off.
What was your initial like gut reaction when you heard this news that a business owner was suing them for its breach of contract? Because they were saying that the website was accessible and it wasn’t.
Steve: Yeah. My, my initial was not surprised because of the claims that they make. But then of course, as a true non lawyer, I want to get to the truth and I want to dig into, to see what’s going on behind the scenes a little bit.
Cause things aren’t always the way they seem. Right. But yeah, we’re probably talking about that, right? Overlays tend to make, right, is what gets them in trouble.
Claims AccessiBe Makes
Amber: Yeah. So let’s start there. What are those claims?
Chris: Yeah. So I pulled up their website and I was scrolling through their current sales language
Amber: AccessiBe’s?
Chris: And I was looking for,
Yeah.
AccessiBe’s. And I was looking at, what are they promising these days? How are they talking about their tool? And it I think that they’ve in the last year to year and a half, they’ve toned it down, but only slightly. It didn’t take me long to find this, their overlay is called Access Widget now.
And Access Widget. Their remediation and compliance processes as follows. Add our installation code to your website. Access widget instantly appears on your website. The AI starts scanning and analyzing your website. The AI fixes inaccessible code on your website. And every 24 hours, the AI scans for updated content to fix.
And they promise here with checkmarks: WCAG 2.1, ADA Title 3, Section 508, and EAA slash EN 301549 conformance. So they’re still promising, meeting WCAG 2. 1. They’re still promising legal conformance, and they’re still saying all you need to do that is install their widget effectively.
So, that’s what we’ve found.
Amber: So our law firm would have a heyday with their website because we, we’ve thought about this, right? What can we promise? What can we guarantee? Obviously we’re very in the camp of manual but even that our law firm had us put in our terms of service and some specific things, and they went through our marketing copy.
And one of the big things that they said to us was, you are not a lawyer. Maybe AccessiBe has lawyers on staff. They’re really big. So maybe they can but they’re like, you’re not a lawyer. You can’t promise compliance with laws. So having a checkmark, Equalize Digital makes you ADA compliant, no.
The most, what they advised us and what I think I would pass along for our listeners if you do accessibility work for other people is, the most you can say is that we’ll help you conform with WCAG. Which is generally understood to be helpful with complying with laws, but, and we can, we are your partner in these things, but you have to comply with the law and you have to figure it out or talk to your own attorney to see if you’re complying with laws because someone who’s not a lawyer can’t tell you if you’re complying with laws or not, or judge, I guess a judge could, which we are none of the above.
Steve: These check marks on the website, like for our listeners. They’ve got like a little shield with a check mark. It’s like an icon.
Amber: Oh, now I feel like I should go look at this.
Steve: Yeah. Yeah. This is interesting. And it says like WCAG 2. 1, right? So it actually, in words, it’s not saying at least here, it may somewhere else.
But I’m just looking at it and it’s just,
Amber: Is this on like the Access Widget Overview page?
Steve: Yeah. Okay. It’s giving you the impression that, a checkmark means it complies. I don’t know. They probably say it somewhere else because there’s a lawsuit happening. Right. But and interestingly enough, that icon Is not visible to screen readers.
Amber: Oh yeah. It’s hidden. So it’s a screen reader user. If they encountered this, it’s a list. They’d hear the text above it. AI powered web accessibility list.
Steve: Yeah,
Amber: however many items, four items,
Steve: that doesn’t and then just
Amber: read the laws.
Steve: There’s no context to what that means, right? It just lists out laws.
So that may be a legal move right there.
Amber: Well for blind people,
but for
sighted people it sure looks like we’re promising you
shield
protection with a checkmark.
Steve: Yeah, if I was to, if I was to code this and I would want to make this list accessible, right, I could have the icon, it could be displayed just like this, but I would have screen reader text that says, WCAG 2.
1 compliant,
Amber: Oh, so you’re saying you might’ve found an accessibility problem on AccessiBe’s website?
Steve: Well, I think they’re saying they’re trying to imply that it conforms with these without saying they comply with these things.
Chris: Yeah. They go on to say further down further down under new potential clients, disabilities that AccessiBe covers.
It says AccessiBe enables website owners to serve users with a wide array of disabilities, all in adherence to the WCAG 2. 1 and worldwide legislation.
Steve: There you go. That’s why they’re in trouble right there.
Chris: Yeah, so I will say that I’ve noticed that they’ve dialed back the CTAs. I had to look a little harder than I did previously, like a couple of years ago to find what they’re promising, but it’s still here.
And I’m, I guarantee you virtually that in like sales conversations and social media posts and stuff, this is all getting reinforced, right?
Steve: Yeah.
Chris: I think that this is probably why they’re in trouble is they’re promising more than their tool can actually do. And it’s not that their tool can do nothing, which I think we’ll get into at some point, but it’s nowhere near able to actually conform with these laws and that’s what this lawsuit alleges.
So maybe should we talk a little bit more about the lawsuit and like what this complaint is and what happened?
Amber: I think we should, but let’s take a quick commercial break, and then we’ll be right back.
Brought to you by Accessibility Checker
Steve: This episode of Accessibility Craft is sponsored by Equalize Digital Accessibility Checker, the WordPress plugin that helps you find accessibility problems before you hit publish. Thousands of businesses, nonprofits, universities, and government agencies around the world trust Accessibility Checker to help their teams find, fix, and prevent accessibility problems on an ongoing basis.
New to accessibility? Equalize Digital Accessibility Checker is here to teach you every step of the way. Whether you’re a content creator or a developer, our detailed documentation guides you through fixing accessibility issues. Never lose track of accessibility again with real time scans each time you save, powerful reports inside the WordPress dashboard, and a front end view to help you track down hard to find issues.
Scan unlimited posts and pages with Accessibility Checker Free. Upgrade to Accessibility Checker Pro to scan your website in bulk, whether it has 10 pages or 10,000 dollars. Download Accessibility Checker today at equalizedigital.com/accessibility-checker. Use coupon code AccessibilityCraft to save 10 percent on any plan.
Amber: I was wondering if you were going to do something funny. Ever since on a prior episode, we came back from commercial break and Steve was pretending to pour the entire drink down his throat. I’ve been like, do we just, do hilarious things every time?
Steve: Yeah, I think so. I
Chris: guess it’s every other.
Amber: Describe what you were doing for anyone who couldn’t see you, Chris.
Chris: Yeah, so I, I had my my empty beer bottle upside down and I was trying to shake the last few drops into my pint glass.
Amber: Is your pint glass empty already?
I’m clearly not
drinking fast enough. Oh, okay.
Chris: I’m pacing myself. This is 8%.
Steve: Handle the truth, right?
Yes,
Chris: I can. I’m handling the truth so far.
Amber: He can handle it much better than we can, is that what you’re saying?
Steve: Yeah.
About the Lawsuit
Amber: Yeah, so, so I think we’re going to link some different articles that have resources. One is Lainey Feingold, who is an attorney but, and of course, it’s always important to hear what attorneys think about this, so we’re going to link that, but the one that I actually found super helpful was Adrian Roselli, who is not an attorney, but does a ton in accessibility space and also has actually been sued by one of these overlay companies.
For the things he has said. And then they ended up dropping it and making a donation to the National Federation of the Blind or something like that after he fought it successfully. But he has a post that I think has a lot more information about what’s in the lawsuit and he includes, you can download the PDF of the lawsuit.
And I wonder if a good place to start is on page 19 where they talk about why they’re suing. Of that PDF document of the lawsuit. So
Steve: Did we give a background on who’s being sued for what?
Amber: Yeah, so let’s, yeah, so maybe we should say that. Do you want to introduce that, Steve?
Who is suing AccessiBe?
Steve: Yeah, so actually it started with an initial lawsuit, right? So the Tridacus Skin Care comp dermatology practice in New York City filed a class action lawsuit against overlay company AccessiBe. So this was what actually happened was there was a class action lawsuit prior to that against Tribeca Skin Care.
Amber: And they’re a dermatology, so like a medical practice in New York City.
Steve: So a class action lawsuit was levied against them. For not having an accessible website and for using a overlay that claim, claimed to make the website accessible. They then reached out to AccessiBe because AccessiBe does claim to give you some help in regards to lawsuits, right?
And they referred them to their preferred counsel, which was at a, was, they were quoted at a cost of 10,000 dollars. They, the
Amber: Can we read, can I back up for a second? So I think what’s interesting about if you actually read the draft or the actual lawsuit document that lists out like statement of fact, I think, or why they’re suing, so this is the, the timeline, right? So they had in as early as, let’s see, so this dermatology practice has been in operation since 2001, in or about 2002, they received an email. From a colleague telling them about, there’s a lot of lawsuits about ADA violations, and maybe you should look into this, and that email specifically referenced accessibility.
So then someone from the practice In 2002, their business manager looked at AccessiBe’s website and saw everything AccessiBe said, like we’ve talked about, about, we’re going to help protect you and guarantee compliance with all these laws, and they used AccessiBe’s scanning tool, which Let’s be real.
Those tools, that tool is literally made to make people want to buy. And AccessiBe is the only one. There’s lots of these overlays. I think we saw one recently on accessible. org, which seems like it’s going to be independent, but the result of every scan is buy AccessiBe or UserWay and they’re affiliate links.
Steve: Right.
Amber: Like they’re pretty much like you. So, so they ran a scan on their website. And it had a, an audit report with 33 pages of over 100, quote, impacts that needed to be fixed and cited, violations of WCAG. So then that motivated them, because these fear sells, right, that motivated them to go purchase the AccessiBe widget and they paid 490 dollars. And then over the next year, between 2022 and 2023, they were receiving regular reports saying that their website was totally compliant. Like it says in quotes, compliant.
Steve: From AccessiBe.
Amber: From AccessiBe. AccessiBe’s your website is compliant. Good job. Right? You’re paying us, keep paying us.
And then their subscription renewed. They paid another 490 dollars. And then in January, 2024 was when they got that class action lawsuit you were saying where they were. sued because, hey, guess what? Their website is not actually accessible. And we pulled up their website from before January in the Wayback Machine.
And we did note quite a few things, right? What were some of the things you guys saw?
Steve: Yeah, there, there was, now I have to preface this. The widget can’t run in the Wayback Machine, right? It’s.
Amber: So you don’t know what Accessibility might’ve been fixing or not.
Steve: Yeah. We don’t. Yeah, exactly.
So, there’s definitely accessibility issues here. Mainly a lot of contrast issues and,
Amber: no skip links.
Steve: No skip links, missing alternative text on certain things. And so a lot of color contrast issues.
Amber: They have a lot of yellow and white. Their logo is yellow. Logos are allowed to fail, but when you have a logo that fails and then you try to make your website match your logo.
You have a problem.
So then it says that they contacted, and this is what you said, Steve, they contacted AccessiBe because AccessiBe in their contract says we’ll provide you support, but I guess that’s not free support, which maybe makes sense because for 490 dollars, what can you actually do? Nothing, right? So they have a law firm that they recommend people to, and maybe AccessiBe even gets a kickback on this. I don’t know. And
Chris: I want to jump in here on this part because I found this particularly fascinating because I actually get in like sales conversations where people are considering, actual accessibility versus accessibility and air quotes and the cost differential, right? They’re like, well, you, do you provide legal protection or legal advice, right?
If we get sued.
Amber: We’ve had people ask us, can we guarantee.
Chris: Can we guarantee? And we’re like, well, well, no. But, and I think, but I think what’s interesting is if you read the fine print and I’ve never seen the fine print before on AccessiBe’s side related to these quote litigation support packages that they offer.
Really all they do and all they promise to do in this. And I’m paraphrasing here basically is if you get sued and you reach out to them and say, Hey, I’ve been sued. And you provide them with the information. All they’re going to do is use their tool to run a scan of your website and give you a report back saying that you’re conformant.
And that’s, and they’re going to give you a list of everything that their tool fixes, and that is the full and complete extent of their litigation support package. And if you need anything beyond that, you get referred to an outside Attorney, which as Steve mentioned is at a massive premium over 2x the cost over what this business paid when they went out and found their own counsel.
Amber: Well, it’s probably because the attorney that AccessiBe has a contract with Pays an affiliate commission back to AccessiBe. I can almost guarantee you.
Steve: Yeah. Yeah, we don’t know. That’s just speculation. We’re just speculating. Don’t sue us AccessiBe
But Yeah, so, so I think in that initial lawsuit which I think we should preface, that was a class action lawsuit. It wasn’t just one person suing the skincare.
Amber: They were suing on behalf of any users or patients of that practice.
Steve: And the outcome of that was that the, they had to pay the 4,000 dollars for the attorney, and then the lawsuit was settled with a as far as we can tell, an undisclosed monetary payment.
Amber: And they had to make their website accessible. This is the thing I Question a little bit because we went to go look at it because it says in here that, that they also paid 3,500 dollars to a web developer to remediate their website. It is a WordPress website, so it’s fun to go explore that and take a look at that knowing WordPress.
I can. I can already tell you, they, if they think their website is fully accessible, it is not. It is better. It is definitely better. It has skip links now, which it didn’t have. They’ve fixed some of the missing alt text, some of the color contrast issues, but right dead center in the middle of the homepage is an image that has a yellow overlay, like a semi transparent overlay and white text.
Steve: Right.
Amber: So that right there,
Steve: Which interestingly enough, we the automated tool is not catching.
Amber: Well, yeah, we looked at it with WAVE.
Steve: WAVE, yeah, in WAVE, it, it’s not catching it because of the way that the divs are laid out.
Amber: Color contrast is so hard. We’ve talked about this before, even with our checker. We, it is really hard to tell color contrast when you have multiple layers, like the background color is probably way up from the text color.
Chris: So what I’ll say too is that I think a lot of these law firms that are doing this are using tools like WAVE to just run an automated scan to try to find targets for these lawsuits.
Amber: That’s what I heard as well.
Chris: And so the fact that this website in its current iteration on the homepage has little or no WAVE errors, I think we checked and confirmed that before this podcast recording.
That, that’s probably what was in the demand for the settlement is that they fix all the errors that the law firm identified in their complaint, which probably used WAVE. So I bet that they this customer didn’t actually, or this this skincare firm didn’t actually pay for a full accessibility audit.
Probably they paid for a remediation for everything identified in the lawsuit or in the in the complaint and that was part of the settlement would be my guess.
Amber: Unfortunately, they hired somebody who promised them it would be fully WCAG compliant and that person doesn’t totally know what they’re doing.
And that person relied only on automated tools too. There’s a reason why our plugin literally said, well, one, it doesn’t ever say 100 percent accessible, but it has a note that’s you have to do manual testing. And we have a very detailed documentation article about how to do manual testing because you can’t rely on automated tools alone.
And that’s why AccessiBe. I find this funny, Chris, you’re pointing out the litigation support package says, we’ll give you a report of what our automated tool finds. Okay. So the automated tool can find 40 percent of problems.
Steve: Yeah. Yeah. We investigated ourselves and found that we are compliant, right?
Chris: Yeah, well, that’s the ridiculousness of this that I’m pointing out, really, all this is a sales tactic to get people to feel comfortable enough to buy, right? Well, maybe that’s like a non, it’s a non service, like they are not actually providing any litigation support. They’re providing again, a second time, the same information that the customer already has in a PDF and an email.
That’s really all it is. Yeah.
Amber: And here’s the thing I’d really love to know. Is that PDF they give them accessible? Because I bet it’s not. I don’t know. It might be.
Claims AccessiBe Makes (Continued)
Steve: Here’s a big question, right? The claim on the website that it meets certain criteria, right? Is it that that’s a big hill to die on to have that guarantee, right?
Does that guarantee actually net in that many more sales? Cause we don’t do it with the accessibility checker, right? We don’t say this is going to make you compliant with,
Amber: WCAG or WCAG 2. 1 or ADA or whatever, right? Yeah,
Steve: Right. We don’t do that, but if we did, would we get more sales? And would that be worth the risk that you run through of litigation like this?
Amber: Oh, that’s such a great question. Okay. So, so we don’t do it with our software. We have had customers where we’ve said, yes, we will give you a letter of compliance. Not with laws, we don’t ever do laws cause our attorneys and I think they’re right. I don’t know laws. I’m not going to put in writing that you comply with any law.
But we will do that. We’ve also created VPATs both for our own software and other software that list out if something passes. Partially passes, that’s not the exact wording, right? Meets, partially meets, doesn’t meet,, or it’s not applicable with every single WCAG criterion. But the thing that is really important to note is every time we write those letters or we do that is dated and it lists all the components we looked at.
I have never once ever provided a letter that says a website is 100 percent accessible because I have never had a client be willing to pay us to look at every single page of their website. Now, maybe the Tribeca Skin Care website is really small, it wouldn’t be that bad, but when, but some of our clients have like hundreds of blog posts or thousands of WooCommerce products.
And the cost, that’s the thing I saw the whole WeRemedia our website for 3,500 dollars and I was like, I don’t know, did you really? Right? And so, so we’re very cautious about that we will literally list out what we’ve tested or what we guarantee compliance on. But I can’t get, I’m not going to guarantee compliance on something I haven’t seen.
And that’s the thing that I think is so odd about, and this is not just AccessiBe, there are other overlay companies that do the same thing. They’ve never had a human look at it. Why are they guaranteeing compliance of it? Yeah, that just seems like you’re asking for a lawsuit and now they finally got, I’m surprised.
Honestly, I’m surprised this hasn’t happened sooner.
Chris: Going back to our like initial reactions, right? You had asked about that. That was my. That was my reaction was it’s about time. I can’t believe it hadn’t happened sooner. Not that I’m hoping AccessiBe or any of these companies get sued. I wish that they would just like, without that motivator, just figure out that what they’re doing is wrong.
And they’re promising, they’re like, they’re lying to people, right? Yeah. At least in the current version of their software. But also I want to go back to your question, Steve, about, if we made these lofty promises, will we suddenly have more sales?
Amber: I think we might,
Chris: I think we probably would, but I think the flip side of that coin, right, is at least for me, and I’m sure for the other two people on this recording I don’t know that I’d be able to sleep at night.
If I would, if I made those promises knowing full well, what I know that it’s a lie and that there’s no way to actually do that.
Amber: And here’s a big difference.
Steve: It’s a lie. Well, it’s a lie or it’s not the truth because it’s not the truth because as auditors of accessibility, we know that. I, who knows what the exact split is, but like 30, 70, right?
Like 30 percent of things can be automated. 70 percent of things need to be manually reviewed. It’s you can’t negate the whole manual side of, like, how can, yeah, I, we all use AI now. We all know AI is a great tool, but, If you’ve used AI, you know it’s failings too, right? Like how can that AI really tell if that image is decorative or not, right?
Amber: I know it’s funny that the AI sometimes just gets so wrong.
Steve: Yeah.
Amber: Right? I, the thing that I think about this when I think about all of AccessiBe’s Marketing language and the promises that they’re making in the name of sales. And I know that they, one of their big ways that they try to sell is they go after agencies, marketing agencies, and they give them an affiliate commission.
So they can make money by reselling Accessibility. But why are they doing this? Right? Like we’re sitting here being like, we don’t, we would not do that because we don’t feel comfortable. You have to remember that they are VC funded to the tune of millions or billions of dollars now. I don’t remember the exact number, but it’s a lot.
So I think this is something that like, at some point when you take on investor dollars, if you don’t take on the right investors. You almost sell your soul.
Steve: Yeah, exactly.
Amber: Like talking about the truth, we’re lucky that we have investors who care about doing good things on the internet and who understand WordPress and want to make cool things for WordPress or for the internet as a whole, right?
That’s our investors at Emilia Capital, but I’m sure that who, maybe whoever founded AccessiBe, like really cared about like the truth. And being honest in the beginning and making a neat tool that would make accessibility easier, which I champion. Whatever we can do to make accessibility easier is good.
Even if it is an overlay, if it can do that, right. But I’m sure at some point in time they got this pressure from their investors to like, Increase revenue and sign up more people. And that’s why they started like promising things that they can’t deliver that are not the truth and selling on fear.
Steve: Well, that was why I posed that original question, right?
If we made the claim, would we make more sales? Yeah, we’re not going to do it. We’re not going to sell our souls. Like you both said.
Amber: This guy, he almost looks like you could sell your soul to him. The guy on my beer bottle.
Steve: But what I’m saying is, it’s when money’s involved, when it’s all about, it’s business, right?
It’s all about money, right? If you have that big of a pile of cash, right, you’ve got 2 billion of investor funds, plus, whatever revenue is coming in.
Amber: We’re making up the 2 billion. That is not a real number.
Steve: We don’t know the actual revenue or anything, but if you have a large sum of money here that is, is in magnitude to the sum of money it takes to settle small class action lawsuits, right?
And the claim of compliance nets you so much more business, right? Isn’t that a C.O.G.? Does the settlements just become a C.O.G.? A cost of doing business?
Chris: Yeah, it just becomes a cost of goods sold or a sales, yeah.
Steve: Yeah,
Chris: I’m hopeful that, yeah, no, but that, that you are, this is, this though is exactly how this is thought about in boardrooms with a bunch of MBA’s sitting around and having a conversation, right?
Amber: People who have never actually spent time talking to a person with disability have never tried to navigate a website without using a mouse or their eyes. And who maybe don’t even understand web development. They’re like marketing people or like accounting people, right?
Chris: They want chart go up, number green number good. Yeah. That’s what they, that’s what they want.
Amber: They’re cavemen, Chris?
Steve: I buy yacht.
Chris: Yeah. I buy yacht. Yeah.
Amber: Yeah. No kidding.
Chris: Second yacht. Yeah,
Amber: Island in the Caribbean. That is my goal. We achieved that, we made the world better.
Chris: So speaking of the truth, I think that there are two other big tells here, if we’re to address like skepticism on, well, do overlays actually do better than all of us Accessibility specialists give them credit for, and are all of us just seeing them as a threat? And so we’re trying to crap on them every chance we get, right? Cause I hear that voice in my head from all the agency owners, freelancers may be listening to us right now. It’s Oh, you don’t like them because you feel like your business is threatened, right?
Well, two, two nuggets of truth. The first one comes from Joe Dolson, who wrote an excellent article that I hope we can link in the show notes about the fundamental flaws of overlay tools. And I think the biggest point he makes in that article that I really appreciated was if overlays are such a great accessibility tool, why are they selling the overlays to website owners and not individuals with disabilities?
Right. Cause it’s a bigger market, right? So the overlay is a product for websites. It is not a product for individuals with disabilities.
Amber: Yeah. So he’s, yeah, because what he’s saying is that. Instead of an overlay being something a website had to install, an overlay would be something that a user could install as like a browser extension and pay for.Or ge it for free, like some of the screen readers are. But of course then there’s zero business opportunity for an overlay. Right. But I thought that was an would work on any website.
Steve: Yeah.
Chris: Yeah, if it’s so wonderful, why aren’t why aren’t individuals with disabilities tripping over themselves in droves to get these tools at the consumer level versus at the website owner level?
So that right there tells you who this product is really for. But number two, and this I think is fascinating is if you look at AccessiBe or some other overlay companies and you look at their websites now, several of them I have noted have added accessibility services. And if you go under the services app, item on AccessiBe’s primary navigation menu and you click on expert audit. Accessibility is selling accurate and reliable web accessibility auditing, starting at 5,000 dollars.
Steve: Well, why do you need that if the overlay?
Chris: Yeah. If your tool makes websites accessible, why do I need to pay you? And it works on anything, right? I just have to automagically, install your JavaScript and there it goes.
Why do I need to pay you for an accessibility audit? Oh, I wonder, is it because maybe your tool doesn’t actually do what you market it as?
Amber: Yeah, I will say that like the accessibility overlays, AccessiBe UserWay is another one where they do a ton of manual audits and remediation. I don’t know if I’m thinking, but I, but there are multiple, I feel like this has come out in the last two or three years as a response to the criticism because they are realizing their tool doesn’t do what it promises.
And this is why I always am a huge proponent for if you’re going to buy something, read the Terms of Service.
The Fine Print + Who’s Responsible?
Steve: Yeah.
Amber: Because even if you look at their Terms of Service and you, there’s a lot in there where it says, it includes, it guarantees certain things except for excluded items. And they have a big list of things that they won’t guarantee will be accessible, right?
Steve: Yeah, it’s all in the fine print. URL parameters. So like anytime you do any kind of dynamic filtering on your website, say you’re using like a facet WP plugin or something, which throws URL parameters up the URL to do, to handle filtering stuff, it’s not going to handle that. There’s a bunch in there.
Any document, several documents types that you would install on your website, iframes. It’s that’s an interesting one. We could probably have a whole episode on who’s responsible for the content inside of a iframe, right? Is that the site owner or is that the person?
Amber: Well, from my non lawyer opinion, what I’ve learned is the website, you as a website owner are responsible for whatever you choose to put on your website, whether or not you can, and this is a whole thing that’s interesting with all those issues I flagged for WooCommerce. One of them that I flagged was that there is no focus outline on the Pay with Google button, which comes out of the Stripe plugin. Except for there was an update on the ticket because I said, I’m going to open a GitHub issue for you in your WooCommerce GitHub back in January.
I’m like, I know that this is not your code. However, I’m assuming WooCommerce has way more pull with Stripe than I do, right? Like they probably know who WooCommerce is, they’ve never heard of me. But the interesting thing was they’ve been going back and forth with Stripe and here’s what they learned.
That actually doesn’t even come from Stripe. It comes from Google Pay, which is like thing.
Steve: API, yeah, just multiple APIs.
Amber: And someone just needs to out, change that outline colon zero.
I’m like, it’s such a small CSS change. So small, but it has a huge impact, but it has to go through all these chains, right, to get to the right person.
But ultimately who does it come down to? My understanding on almost all the laws, there are different laws, which maybe we might talk about in a future episode where, but ultimately what it comes down to is the business owner.
Steve: Yeah. Yeah.
Amber: And maybe that’s small enough that it’s not, if everything else is accessible, that one thing you’re not going to get sued for, right? But like at some point you’re You have to choose not to use the thing because it’s not accessible and it’s going to add problems to your website. And if the service or the vendor isn’t willing to fix, you have to make a change in this vendors that you are utilizing to build your website or the iframes you’re embedding or whatever that might be.
Steve: Yeah, I think too there is a lot of vitriol for layout overlays, which. Right, rightfully so, right? And I think a lot of it is the claims that are made, right? But I do think that it’s worth it.
Amber: Because they over promise.
Closing Thoughts and Remarks
Steve: Yeah, I do think it’s worth acknowledging that some of the methods and the automation that goes into doing these things is not necessarily evil in and of itself or not worthwhile of utilizing.
We’re actually, the accessibility checker, we’re actually looking for ways to have to move beyond just identifying issues and helping users actually resolve those. Right. And we think that’s a little bit of the future of the plugin is not just to say, Hey, this is wrong, but it’s also to, to lead them in solving it.
Now. Now I have, from a developer standpoint, like purely JavaScript, doing it all with JavaScript is. Can create limitations and creates the conflicts with screen readers that we’ve mentioned. The beautiful thing about WordPress is we have a lot of ways to hook into things and we can modify things at the server level, right?
So before the page is rendered. So to a screen. To a screen reader, it appears as the way it is. It’s not the DOM loading and then being modified.
Amber: Now, And that probably is better for performance too, I would guess. Right?
Steve: Well, it depends what you’re doing. It depends what you’re hooking in at the server level and changing and when you’re changing it and how much you’re changing.
But So this automation can be good. Fixing things programmatically, things that can be fixed programmatically, I think is a good thing and is a helpful thing. But making a claim that XYZ tool is going to make your website 100 percent compliant is just seems ridiculous, right?
Amber: Yeah. So what do you guys think the Impact of this website will be if you had to look into the website.
Sorry, the lawsuit will be. I have had too much truth.
Steve: Too much truth, man.
Amber: I can’t even talk anymore. OK. If you had to look in the future. So first of all, do you think they’re going to settle?
Yeah. Yeah. One hundred percent.
Yeah. Accessibility is not going to fight it, right?
Steve: Right.
Amber: Okay, I think we’re all on the same page.
We agree that. Do you think that as part of the settlement, AccesiBe will change their marketing language and or their terms of service?
Chris: I think it’s unlikely.
Steve: I think it’s unlikely as well.
Amber: Because of the whole like, we’re VC funded and we have to make money and that’s what we care most about.
Steve: Yeah.
Chris: Yeah. I think that their pockets are too deep.
I think the only way that these organizations, AccessiBe and others like them get pulled into line with not overtly lying to people as if it gets to the point where like maybe the FCC, I don’t know if that, is that the right one?
Amber: No. Yeah. That’s who oversees like advertising. I’m pretty sure the FCC.
Chris: All the alphabet soup confuses me. But the, but if the FCC starts to get taken interest
Amber: Or whatever it is in Europe.
Chris: Yeah. Or whatever it is in Europe with these new laws coming out. Right. Particularly in the EU, we might see change, but I think as we’ve seen with accessibility in general, which it’s on the one hand it’s depressing, but on the other hand, I’m thankful that legislators are taking action is that the laws are really what is going to continue to drive this forward.
At least right now in this current environment.
Steve: Yeah. The. The outcome of this is probably a bunch of lawyers are going to make a lot of money. Yeah,
Amber: I know. That’s the thing that’s so rough about some of these lawsuits.
Steve: Yeah.
Amber: I think I saw, when we were talking about, we have a podcast episode where we talked about the California lawsuit and the blind man got like a couple hundred thousand dollars.
But everybody else made, like millions of dollars.
Steve: Yeah. I think where we can make this applicable to us and to our audience is to use this as an educational tool, right? Like have awareness of what these tools are, right? Don’t recommend like agencies out there. Don’t, I would, I’m not a lawyer. I’m not going to tell you what to do, but I would research. Overlays, and choose very wisely how you intend to work with them or don’t work with them.
Amber: Yeah, I would, so personally, this is how I handle it when people ask us. First of all I would never choose a partner with one, I would never take money from one.
Because I don’t and I’ll be totally honest. We recommend hosting companies to people all the time, but we don’t use affiliate links ever when we do it. And it’s not because I don’t love the hosting company, but I’m just like, I don’t want my customers to ever, or my clients to ever feel like I’m only recommending this thing because I get a kickback of 75 or whatever, right?
If you think about the long term relationship with your customers or your clients, like you don’t need 75 bucks for referring them to XYZ hosting company or XYZ, overlay, right? So I don’t need that money and I feel like then my customer trusts my referral way more. And so then when people ask me about them, so of course I don’t have any sort of relationship and what I always say is I have seen where overlays have fixed some things on websites.
But I always refer them to the overlay fact sheet, and I say there, this is a website that you should take a look at. There are a lot of users and people with disabilities who really don’t support overlays being on websites and say it causes, especially blind people who say it causes issues with their screen readers, so you have to weigh that.
And then and then the other thing I’ll say is they don’t protect you from getting a lawsuit. This one we’re talking about, the Tribeca Skin Care, is a great example. We’ve shared the iBobbs v. Murphy case before, where iBobbs got sued by someone because their website wasn’t accessible. I think they were also using AccessiBe.
But we have a client who came to us very recently who uses UserWay. And they have been sued twice. And they’re like, okay, now we need to actually make it’s not doing what it’s supposed to do and we want to stop this, so we’re going to fix it the right way. So, so that’s what I always just tell customers.
I’m like, if you want to try it, you can try it, but I would not believe that it’s going to protect you from a lawsuit. And I would also not believe it’s going to make it fully accessible. Maybe that toolbar is handy to a few people. But most of the time when I hear like a lot of people with disabilities, like the toolbar, like they ignore it, they don’t use it.
Chris: So to piggyback go ahead, Steve.
Steve: Yeah. The reality is that the way to mitigate against any kind of lawsuit like this. Against your own website, right? Is to make sure it’s actually accessible. And I know humans want a one click fix for everything in life, right? But the hard truth here is that there is not a one click fix for accessibility, right?
It requires, there are automated things, but there are things that require a human with knowledge to do it. Audit thoroughly and remediate. Yeah.
Chris: And look at this customer, right? That maybe these people had an agency, maybe they didn’t, but they’ve invested a thousand dollars in a tool.
And then another, what, like 7,000 dollars between a lawsuit and paying a specialist to actually fix the problem after spending a thousand dollars on an automated solution. And then there’s an undisclosed amount. For a settlement. So they’re probably 10,000 dollars in the hole. Whereas looking basic, based on the size of this website, if we were to have audited and remediated that, I bet it would have been significantly less than 10,000 dollars and I think the other point that I want to make on the sales side, and I’m seeing this more and more as these laws come out is I am having conversations with now like state and district level and higher education institutions who are looking to make their websites accessible.
And they’re like, yeah, you’re like the seventh agency. I’ve talked to the last five of the seven have recommended overlay tools. So I just ended the conversation there and thank God I finally found someone who’s not you know, saying that, and so if you actually want to be considered for these higher ticket builds and this type of work, which is by the way, going to explode in the next two years, stop recommending overlays for the love of whatever just stop it.
You need to find a partner if you don’t understand it or build the in house skills if you’re, if you feel like you’re there, stop recommending overlays.
Amber: Yeah, because you’re going to, this is, it is a literal gap in the market. Totally. There are not enough of us, even in just the WordPress land.
But if you think beyond WordPress, right? Shopify, Webflow, like all of that, there are not enough of us to help all of these business owners. That’s why, like we have WordPress Accessibility Meetup, we hardly ever speak. We like bring all these other people and we’re like, please share your knowledge.
Let’s help build other people with the skills and that kind of thing. Because there’s no competition in this land. There is, there are way more websites that need to be made accessible. And yeah, if you can stop recommending overlays, you’re going to get so much more business. So yeah.
Yeah, it’ll be interesting to see how this one plays out. I’m definitely going to watch it. I think you guys are right that they’re just going to settle. And maybe they, it’s sad to think that maybe they won’t change their marketing language or what they tell business owners. I think, I don’t know that we have a lot of business owners who listen to this podcast, but if you are a business owner, I think my big takeaway is you always got to read the fine print of what you’re buying and really understand it, and if you don’t If you don’t understand it, bring in someone who does, ask your attorney or ask, a web dev professional.
If you DIY’d your WordPress website maybe you need to spend some money like your website is like your virtual storefront way more people are gonna see it than your physical storefront. So it is worth investing in.
Steve: Yeah, and the bigger picture too is that it’s not just about mitigating Litigation, right?
It’s about we said this a thousand times it’s about doing the right thing like these are real people that need to use the internet to do things just like we do.
Amber: Well, and honestly, sometimes they need to use the internet more.
Steve: Yeah, exactly.
Amber: Especially if you get into the land of eCommerce, right? Or like making appointments with your doctor?
Steve: Yeah.
Amber: You should be able to do that. Everyone should be able to do that. It’s like a basic human right.
Steve: Totally. Cool. Well, I’m feeling the truth guys. I’m not as far into it as Chris.
Chris: That, that 8 percent is sinking in, but I’m getting towards the end here. This was a delicious beer. So maybe we can close with that. Because I think we’re probably about at the end. Is this a drink again? Maybe not really?
Amber: I think we said it.
Steve: My opinion changed about right here.
Amber: Halfway down the bottle, Steve was like, I will definitely be having this beer again.
Steve: Unfortunately, Chris didn’t send me a case of these. He only sent me one.
Amber: I know. That is the downside when we do, Craft City is where we are able to sometimes buy beer on the internet and have it shipped. Sometimes we ship it other ways that we won’t talk about. But you can just do a bottle, which. Is good, but also not good. Cause if you like it, you’re like, man, I wanted more of that.
Steve: Except for when it’s the turkey gravy, that’s probably still sitting in the bottom of my pantry.
Amber: Oh, you know what that turkey and gravy soda, we just took to Chris’s family’s house for Thanksgiving. No one drank it. We left it. You know what? Actually, it’s at his grandma’s house and they’re cleaning out his grandma’s house right now.
It’s probably still there. We’re going to find it and someone’s going to be like, you want this back? And we’re going to be like no,
Steve: You can use that to clean the floors.
Amber: All right. Well, we will be back in two weeks with another conversation episode. See y’all later.
Steve: All right. See you guys.
Chris: Thanks for listening to Accessibility Craft. If you enjoyed this episode, please subscribe in your podcast app to get notified when future episodes release. You can find Accessibility Craft on Apple Podcasts, Spotify, and more. And if building accessibility awareness is important to you, please consider rating Accessibility Craft five stars on Apple Podcasts.
Accessibility Craft is produced by Equalize Digital and hosted by Amber Hinds, Chris Hinds, and Steve Jones. Steve Jones composed our theme music. Learn how we help make thousands of WordPress websites more accessible at EqualizeDigital.com.