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Person using a laptop surrounded by icons representing privacy notifications

This is post #15 in the ADA Compliance Series, which aims to outline a structure for validating and justifying a claim of “ADA compliance” for a website or other digital system (a few notes and disclaimers on that).

There’s an interesting trend we’ve seen in recent ADA lawsuits filed where a website’s terms of use or privacy banners aren’t accessible. I’ll give you the allegations from a recent lawsuit, each followed by what it means in plain language:

Defendant informs the Website user that the user’s personal information and browsing history is collected and is used for targeted marketing and advertising.

  • The website has terms of use and privacy banners that notify users of the fact the site uses cookies and the privacy policies of the site including the use of that information

Because of his blindness, Plaintiff was unable to comprehend the Website; therefore, Plaintiff has had no choice, and likewise no knowledge, of Defendant’s installation of data and information tracking software and the collection of the Website user’s browsing history and analytics placed on the user’s computer.

  • The plaintiff is blind and can’t see the banner or read the terms of use on the screen. Since neither of those were accessible via the screen reader the plaintiff wasn’t aware and didn’t have a chance to opt out of the cookies being placed on their computer.

Based upon the review of the Website, when a user accesses the Website, Defendant places software on the Plaintiff’s personal computer, without the user’s advance consent or knowledge.

  • But the site went ahead and placed the cookie anyway without the user’s consent or knowledge.

As such, through its Website, Defendant has committed a trespass against the Plaintiff since the Website places information gathering software on the Plaintiff’s computer without Plaintiff’s knowledge or consent.

  • Therefore, the site has committed a trespass against the plaintiff by putting the cookie on the user’s machine without notice or user consent

That’s one of the more significant claims that we’ve seen in lawsuits. We’ve also seen arguments that when a privacy policy sets forth notices and user preferences that are required by statute, such as the California Consumer Privacy Act or Europe’s General Data Protection Regulation, inaccessible privacy policy or privacy banner violates those laws.

We view this as part of a broader set of requirements in lawsuits and digital accessibility standards—notably the Web Content Accessibility Guidelines (WCAG)—that call out the need for legal documents, terms of use, user agreements, click-wrap agreement, copyright notices and related documents to be accessible. For the broader set of legal documents, the logic is simple: if the document isn’t accessible a person with disabilities can’t be bound by it. A court opined on this vary issue in the case of the National Federation of the Blind v. Container Store, Inc. where the court did not enforce an arbitration agreement because “[a] blind customer would not be able to see the terms on the screen when he/she was given an opportunity to review them and therefore the customer also would not know to ask for them to be read aloud.”

Clearly both the privacy implications and the broader legal enforceability items indicate a need to ensure that privacy and legal notices and agreements are demonstrably accessible.