California Proposes Website Accessibility Law with Significant Compliance Obligations and Liability Risks Nationwide

On June 12, 2023, the California Assembly's Judiciary Committee replaced the full contents of AB 1757 (a bill originally addressing court consolidation) with new legislative language featuring heightened standards for websites and mobile applications to be accessible to persons with disabilities.[1] Although the bill is now on a slower track for consideration, the proposed legislation would effectively make Web Content Accessibility Guidelines (WCAG) 2.1 Level AA the de facto accessibility standard for websites and mobile applications of "business establishments" that are open to the public, a public place, or a place of public accommodation or any other business or place that is subject to California's Unruh Civil Rights Act. Businesses that fail to comply with the heightened accessibility standard could be subjected to statutory damages of $4,000 "per occurrence," attorneys' fees, and injunctive relief.[2] Recent amendments to the proposed legislation would require professional reviewers to certify compliance with WCAG 2.1 Level AA annually and each time the website is revised in a manner that impacts accessibility.

Digital accessibility appears to be a topic of interest in the summer of 2023. Along with the introduction of AB 1757 during California's legislative session, the Federal Communications Commission (FCC) issued a Notice of Proposed Rulemaking (NPRM) that would require all online video conferencing services and related equipment to be accessible to, and usable by, persons with hearing, speech, and vision-related disabilities, among others (learn more about the FCC's NPRM here). The proposed actions by the FCC and California lawmakers is an indication that business owners with effectively any web presence need to take steps to strengthen their compliance posture when it comes to making their website(s) and mobile application(s) accessible to individuals with disabilities.

Notable Aspects of AB 1757

• Significant Shift in Digital Accessibility Landscape: If enacted, AB 1757 would represent the first time a U.S. governmental entity officially codified WCAG 2.1 as a governing standard.
• Broad Application: Any business with a website or mobile application accessed in California would conceivably be subject to the proposed accessibility law.
• Heightened Compliance Requirements: Businesses would need to meet the aforementioned WCAG 2.1 Level AA accessibility standards,[3] which entails offering synchronized captions for all live audio content and audio descriptions for prerecorded video content, among other obligations. There would also be a need for website owners to integrate accessibility considerations into their development processes such as routine accessibility testing and auditing. The law might preempt less stringent standards imposed by Section 508 of the Rehabilitation Act, which governs federally procured information technology. Notably, the WCAG 2.1 Level AA success criteria obligations for captioning and audio description exceed the Federal Communications Commission rules applicable to streamed video programming.
• "Equally Effective Communication" Legal Standard: AB 1757 would allow plaintiffs with disabilities to recover damages where the "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," and the plaintiff: (1) personally encountered a barrier to equal access, or (2) was deterred from accessing all or part of the website or the content of the website due to the website's inaccessibility. This standard could be interpreted to preempt long-standing FCC requirements governing telecommunications and advanced communications services.
• Shared Liability for Business Owners and Web Developers: AB 1757, as currently drafted, would expose both businesses and third-party developers to potential liability for statutory damages, attorneys' fees, and injunctive relief concerning website accessibility issues. For example, AB 1757 states that it is unlawful for any "resource service provider" to intentionally or knowingly construct, license, distribute, or maintain an internet website that fails to comply with the WCAG 2.1 Level AA accessibility standards.[4] The term "resource service provider" is defined broadly to include "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."[5]
• Reciprocal Liability: Not only would AB 1757 provide individuals with disabilities the ability to file a legal action against website owners for noncompliance, there is a reciprocity provision enabling website owners to pursue compensatory damage claims against website developers for website accessibility noncompliance.
• No Transition Period: If AB 1757 is enacted in its current form, businesses would not be afforded a transition period to come into compliance.

Implications of AB 1757 Extend Beyond California

If enacted in its current form, AB 1757 carries significant implications for businesses not just in California, but nationally. This is because any website in California can conceivably be accessed across the country. As a result, it means WCAG 2.1 AA would effectively become the governing national standard for website accessibility. This raises important questions about the interplay between AB 1757, if enacted, and the Americans with Disabilities Act (ADA), which currently does not require businesses to comply with WCAG 2.1 AA for the websites or mobile apps of public accommodations. Rather, the ADA requires public accommodations to offer auxiliary aids and services to ensure "effective communication" with persons with disabilities. It is also worth noting that the U.S. Department of Justice (DOJ) recently issued guidance on website accessibility which stated that businesses would be afforded a level of "flexibility"[6] in complying with the ADA's "general requirements of nondiscrimination and effective communication" and only references WCAG as "helpful guidance." On July 25, 2023, the DOJ issued an NPRM that would revise the regulation implementing title II of the Americans with Disabilities Act ("ADA") to establish specific requirements for making accessible services, programs, and activities offered by state and local government entities to the public through the web and mobile applications, including requiring compliance with WCAG 2.1 AA within two to three years of the final rule's implementation, depending upon the entity's size.

Looking Ahead

The California Senate's Judiciary Committee debated amendments to AB 1757 under the auspices of potential passage during the 2023 legislative session but decided not to move forward this year. Instead, AB 1757 will become a "2-year bill." Under California's Constitution,[7] bills introduced in the first year of a Session (i.e., the odd-numbered year) can be carried over to the second year of the Session (i.e., the even-numbered year). If passed by the requisite committees and ultimately voted on by the State Assembly, AB 1757 could very well be signed into law at some point in 2024.

If you would like to learn more about California's proposed accessibility legislation, please contact Maria Browne or John M. Magliery.