January 31, 2025
FTC Targets Accessibility Overlays
On January 3, 2025, the Federal Trade Commission ("FTC") announced a proposed $1,000,000 settlement with accessiBe Inc. and accessiBe Ltd. accessiBe is a software provider that sells an AI-powered web accessibility tool called "accessWidget." accessWidget is a plug-in, designed to make websites compliant with the Web Content Accessibility Guidelines ("WCAG"). The WCAG are technical standards designed to make web content more accessible to people with disabilities. These standards have been almost universally adopted by courts and regulators as the means to achieve and measure web content accessibility, as required by the Americans with Disabilities Act.
The FTC's complaint alleges that accessiBe marketed the accessWidget "as a tool to correct website accessibility barriers." accessiBe specifically claimed that accessWidget "makes a website compliant with 30% of WCAG's requirements immediately and initiates an AI process that makes the website fully compliant with the remaining 70% of WCAG requirements within 48 hours." The company also represented that accessWidget re-scans the website every 24 hours and, thus, "ensures compliance even when web content is altered." But "[a]ccessibility overlays are not intended to permanently alter web code or design, but to permit temporary modifications to the user interface that may impact accessibility while visiting a web page." Specifically, the FTC alleged that in many cases accessWidget failed to make components such as "menus, headings, tables, images, recordings, and more," compliant with the WCAG and accessible. The FTC also alleged that accessiBe disguised its advertisements as third-party reviews and articles. These actions were deemed unfair and deceptive and, thus, to violate the FTC Act.
In addition to the $1,000,000 civil penalty (which the FTC notes could be used to provide refunds to consumers), the proposed consent order would require accessiBe to refrain from engaging in the "allegedly illegal conduct," including representing that its products can make any website WCAG-compliant or ensure continued WCAG compliance. The consent order would also prohibit accessiBe from misrepresenting material facts in its marketing and from misrepresenting that third party reviews and articles are authored by impartial users. Further, the consent order would require accessiBe to disclose if an endorser has an "unexpected material connection" to the company or its products.
This FTC action is a good reminder to look at your web content accessibility compliance program and any tools used by your company to achieve accessibility (and consider having outside counsel do the same). Auditing and remediating website accessibility is a complex process that requires both automated and manual components to truly be effective. In addition, overlay approaches are not recommended as a long-term solution to accessibility. As the FTC found with accessWidget, overlays rarely function properly, and they are not a sufficient alternative to having a third-party auditor identify and remediate accessibility barriers. Also, make sure to closely review the terms of use for the accessibility tool you are using or plan to use and not just the associated marketing (including any reviews or endorsed articles). In other words, beware of accessibility solutions that sound too good to be true because they probably are!