I just published a new article on my Medium column.

The title is AB.

1757 New California Bill Would Increase Website Accessibility lawsuits Across US.

So I have this article pulled up on the screen and I am going to provide commentary on the article and bring forward a few points that I haven't in my previous videos on the new California bill.

The first note is this bill was originally about port consolidation.

It had nothing to do with digital accessibility, but then it was amended to be all about accessibility.

So it's basically a new bill.

It's curious to me how that came about or why the original bill was completely deleted and then a new one is inserted.

But that's what we have in front of us.

The law as it stands, or the proposed law as it stands.

It would only inflame serial digital accessibility.

And I use the word digital because this is going to be about much more than websites.

Currently, litigation primarily concerns website accessibility.

And so I would say 97% plus of the lawsuits that I come across are about website accessibility.

I think if this law were to be approved, or if this bill were to be approved and become law, then we would see lawsuits concerning software, of course, mobile apps, we'd see more digital assets in play.

And I'm going to go ahead and read from the Quick Takeaways and summarize the Quick Takeaways from the bill that I have in the article.

So here's a bullet point list applies to websites, mobile apps, and potentially more digital assets.

Requires WCAG 2.1 AA, conformance, website app, etc.

Owner operators can be sued, so can developers, designers, digital asset sellers, etc.

Entities from other states and potentially other countries could be sued on that last bullet point.

Although this is a California state law, because websites and mobile apps and other digital assets can be accessed from the state of California, it potentially implicates people and entities from other places besides California.

So the next section is the standard, and I write that this law would be difficult to defend against.

So the standard incorporated into the law is WCAG 2.1 AA. So that's the technical standard.

And plaintiffs lawyers will absolutely feast on this because what can happen is they can construe any technical deviation, however minor that deviation is, from full conformance with the Web Content Accessibility Guidelines.

They can construe that deviation into a plausible means for bringing a claim for discrimination.

And all they have to do is have their client make one of the two following arguments.

And this will take me several seconds to read, but this is important. It says.

This is from the bill.

To be entitled to statutory damages for Internet website accessibility, a plaintiff must prove one of the following one 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 others who are not disabled.

That's going to be extremely difficult to defend against because the emphasis here is on what the plaintiff experienced.

And so it reads again that the plaintiff personally encountered a barrier that caused the plaintiff to experience a difference in their ability to access or use the website.

So it's difficult to counter what someone experienced.

We can't tell someone what they experienced and so the plaintiff can put forth that they did indeed experience a difference in their ability to access.

So this is a rather subjective standard for one.

Now let's read two.

And again, the prompt here is to be entitled to statutory damages for internet website accessibility, a plaintiff must prove and then the second is 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, etc

So number two would be especially difficult to defend against because all someone would need to do is argue that they were deterred from accessing all or part of the website or the content of the website.

So it's very difficult to defend against someone who claims that they were deterred because of for any reason, right?

And any reason could be any deviation from the WCAG 2.1 AA standards.

Now, these standards are fairly objective, but there are success criteria.

So there are these different requirements that are called success criteria under the technical standards and there are 50 different success criteria.

So some of these success criteria are arguable, right?

We can argue whether there was a sufficient description or whether there wasn't.

But the problem is that if we initiate litigation and we are making that argument in litigation, it becomes very costly, especially for those that are defending against the litigation.

So it's very time consuming, it's very costly.

But the point is that it's fairly easy to have an argument that in some way that there was a deterrent from accessing all or part of the website.

So again, we're looking to these mostly objective standards.

But if there is one way in which you don't meet one of the 50 success criteria, then it gives rise to a potential claim.

So this is why it is so easy to envision a scenario where this bill, if it is approved and becomes law, they're so easy to envision a scenario where litigation really ramps up even more than it already is.

I think we would see more California plaintiffs law firms enter the space and we would see those firms and the firms that are already in this industry increase the number, the amount of litigation that they're involved in.

So because the way that damages can be established is so subjective.

I think that this bill is problematic on its face.

And so we want to have something more objective where we are looking at the website and whether the website reasonably provide access or whether there was meaningful access.

So to illustrate, imagine if we were to go onto Amazon.

Can we go onto Amazon and choose a product, learn about that product or any number of products, add one or more of those products to the cart, and then successfully check out without any significant barriers to access or any notable impediments to access, etc

So is that possible?

If we adhere to these strict technical standards and we apply them in the strictest sense, there can potentially be many ways in which someone can initiate litigation and have a claim for damages.

So I wanted to emphasize that in this video and how the subjectivity here, even though we have these technical standards, that we're looking to the subjectivity in applying those standards and determining when someone can bring a claim that will really increase litigation.

So who can be sued?

It's important to note that this is not just about the owner operators of websites or mobile apps.

It's also the people who designed the website, who developed the app, who built the platform, who created the plugin, and so on.

And so those developers and designers, they can be sued not only by the plaintiff, so not only by the plaintiff who has a disability, but also by the owner operators of the websites and mobile apps.

So again, we can see there being more litigation from an indemnification point of view, right?

If the website or mobile app owner is sued, then they will in turn likely sue whoever provided them that website or mobile app, or maybe it was the website builder platform, etc

So let's take some language from the bill.

It says it is unlawful for any resource provider, keep that in mind, any resource provider or any resource service provider, in exchange for money to intentionally or knowingly construct, license, distribute or maintain for online use an internet website that fails to comply with the internet website related accessibility standard.

And then later a resource service provider is defined.

A resource service provider is a person or entity that in exchange for money, constructs, licenses, distributes or maintains for online use any internet website or resource to be used within or in conjunction with an internet website.

Note that language or resource to be used within or in conjunction with.

So this could mean that plugins are implicated.

This could mean that email captures right from email service providers, those could potentially be a resource service provider.

So anything that you can integrate into your website or add to your website or use in conjunction with your website, those providers, those service providers could all be potentially liable under this new proposed bill.

And so I put emphasis on that because there's just so much fallout from that.

There are so many broad reaching consequences from that.

Another note I wanted to make is that the bill says Internet website includes all Internet web based technology, including, but not limited to a mobile application or app that can be accessed by a mobile device.

So, first of all, what this is getting at is when they say website, they don't mean just a website.

Internet website encompasses multiple things, and they're saying includes all web based technology, internet web based technology.

So keep that in mind.

So that could be an email client, for example, for example, Gmail, but also note that they put in their mobile application or app.

But not all apps are web based.

Some apps are native mobile apps, some are hybrid apps.

So I thought that language was interesting, and that was a question I would raise about this bill.

And then I conclude by then talking about how, according to Safe Art Shaw and their blog post, and I will link to that in the YouTube description as well.

This bill is three months away from potentially being approved.

Again, it is not law yet, it may never be, but in a few months it's possible that it could be.

I don't know, however likely or unlikely that is, but the very fact that this could potentially become law should spur anybody, any entity, any organization, nonprofit, for profit association, membership entrepreneur, small business, multinational corporation, whoever you are.

This should spur accessibility.

It's not like there already isn't an ongoing, rampant serial litigation surrounding website accessibility.

So this should already be on your radar.

But if you haven't already embraced accessibility and incorporating the Web Content Accessibility Guidelines, this should now be spurring you to start action, start training your digital personnel, your digital team, on making sure that all content incorporates the Web Content Accessibility Guidelines and is accessible.

Right? So accessibility should be a priority.

If it hasn't been already, it should be now.

But this is something that you can turn into an advantage.

You can be a first mover in this space and become the first provider in your space to embrace accessibility and to ensure WCAG conformance in all of your digital assets that you produce and sell, provide services for, etc

So that is what I think the takeaway from here is, whether or not this becomes law, there will be at some point another digital accessibility law, and you will need to be in compliance with that.

So it's better just to embrace it.

Start training now.

I have a course called the WCAG Course.

I will link to that below.

I will link to my ADA compliance course below as well.

And those are great starting points to help you with training and reducing the risk of litigation.

But for now, start working in accessibility.

There's so much upside, there's so little downside.

So I highly recommend that everyone start embracing accessibility.