For the past four years, the World Wide Web Consortium (“W3C”) has been working to update version 2.0 of the Web Content Accessibility Guidelines (“WCAG”) in order to keep pace with rapid developments in the technology space. On June 5, 2018, W3C published version 2.1 of the WCAG, adding seventeen additional criteria to address accessibility barriers, mainly related to mobile devices and disabilities that affect visual and cognitive functions. As website accessibility standards continue to evolve, businesses must spend considerable time and money in an effort to limit their liability in the face of increasing “surf-by” lawsuits.
What do these updates mean for website and mobile app operators?
Navigating the New WCAG
The web accessibility standards added to version 2.1 are an extension of the standards of 2.0, which were issued in 2008, and follow the same A, AA and AAA compliance ratings. In court decisions that have ruled against website owners on the issue of American with Disabilities Act (“ADA”) accessibility, some judges have required website owners to bring their respective websites up to a WCAG 2.0 AA compliance standard. It is likely that courts will enforce a WCAG 2.1 AA compliance standard in the future. Therefore, when auditing a website for WCAG compliance, it is important to apply all of the standards contained in versions 2.0 and 2.1. These accessibility standards will apply to all devices that can access websites, including mobile devices and tablets, in addition to laptops and desktop computers.
Enforcement Based on Website Accessibility Standards
Over the last couple of years, courts have seen an increase in website accessibility lawsuits brought under the ADA. While some courts have applied ADA standards of enforcement only to websites that have a connection to a physical store or location, others have interpreted the ADA more broadly to apply to online-only businesses. Website owners were hoping that the Department of Justice (“DOJ”) would issue regulations providing specific guidance with respect to ADA enforcement, but in 2017, the DOJ withdrew any proposed technical website accessibility guidance, leaving the industry in a relative regulatory vacuum.
WCAG in the Future
As technology evolves, so will the WCAG. The W3C is already working to develop WCAG 2.2. W3C estimates that it will be released on a similar four-year timeline as that of WCAG 2.1. With the lack of concrete guidance from the DOJ, it is more important than ever to consult with experienced counsel in order to assess the risks and means to avoid or minimize ADA website accessibility exposure.