False advertising harms consumers and is damaging to a fair
marketplace. It is also illegal.
The Federal Trade Commission Act is
the primary statute of the [Federal Trade] Commission. Under this Act … the
Commission is empowered, among other things, to (a) prevent unfair methods of
competition and unfair or deceptive acts or practices in or affecting commerce;
(b) seek monetary redress and other relief for conduct injurious to consumers;
(c) prescribe rules defining with specificity acts or practices that are unfair
or deceptive, and establishing requirements designed to prevent such acts or
practices; (d) gather and compile information and conduct investigations
relating to the organization, business, practices, and management of entities
engaged in commerce… [1],[2]
Under the Federal Trade Commission Act:
Advertising must be truthful and non-deceptive.
Advertisers must have evidence to back up their claims;
and
Advertisements cannot be unfair.
In addition to false advertising being a violation of
Federal law, all 50 states have legislation aimed at protecting consumers in
their state from deceptive practices. 19 states have adopted the Uniform
Deceptive Trade Practices Act[3]
while the remaining states have their own, similar laws. The consumer
protection laws in 49 states explicitly forbid false advertising.[4]
What is Web Accessibility?
Web Accessibility, in simplest terms, is the extent to which
people with disabilities can access websites and other web-based systems such
as online retail and banking, web-based software necessary for their jobs,
social media, and more. While people with disabilities may require additional
hardware or software (called Assistive Technologies) to facilitate that access,
websites still must be designed and programmed properly so that the assistive
technologies can accurately interpret and/ or facilitate the proper experience
for the users.
The criteria against which accessibility is typically measured
is a standard known as the Web Content Accessibility Guidelines (WCAG). The
WCAG standard is developed by the Accessibility Guidelines Working Group of the
Worldwide Web Consortium (W3C), the international standards body of the Web.
This working group currently has 182 participants, including 32 invited
experts, representing 57 organizations across the globe. Version 2.0 of WCAG
is recognized as an ISO standard (ISO/ IEC 40500:2012). It is the basis for,
or referenced by, 39 laws and policies around the globe. In the United States,
it is incorporated by reference in Section 508 of the Rehabilitation Act and is
often referenced in lawsuit filings, settlements, and consent decrees for the
Americans with Disabilities Act (ADA).
False advertising among Web Accessibility Overlay vendors
History and description of Overlays
The first tools for testing a website's accessibility were
created not long after foundational work for the first version of WCAG (Web
Content Accessibility Guidelines) - the predominant industry standard defining
the requirements for accessibility on the Web - was created. Shortly after the
final release of WCAG 1.0, products purporting to deliver automated compliance
were created. It did not take long before companies that were promoting automated compliance
were being heavily criticized among those in the accessibility field as being misguided and for
overstating their utility for people with disabilities[5].
Those early products almost always came in the form of small
user interface controls that merely read the page's content aloud. Over time, similarly-positioned
products would move to adding "widgets" which intend to function as
on-page assistive technologies by adding controls to modify the features of the
websites on which they were deployed. These controls do things like increase
font size, change the contrast of the colors on the page, and change the
appearance of certain types of content on the page.
Figure 1: Screenshot of the "widget" from
UserWay. Nearly all overlays have their own version of this type of control set
which offer so-called "enhancements" that change the display of the
site upon which they are installed. Screenshot taken November 11, 2021
More recently, vendors of these products claim that their
product can repair underlying code quality problems in the sites on which
they're deployed and, further still, claim that they are using artificial
intelligence to render websites compliant with laws and standards having to do
with accessibility.
These claims are poorly received by career professionals in the
accessibility field. Over 600 people have endorsed a community-driven statement
against overlay products called the Overlay Factsheet.[6]
The
list of signatories on the factsheet includes accessibility experts, disability rights
advocates, lawyers, contributors & editors for the technical specifications
that run the Web itself, and most importantly, end users with disabilities. The
list of signatories come from over 16 countries around the world. In summary,
the Overlay Factsheet's signers agree that:
Overlay widgets are unnecessary and are poorly placed in
the technology stack.
While some automated repair is possible, customers should
be discouraged from using an overlay as a long-term solution.
While the use of an overlay may improve compliance with a
handful of provisions in major accessibility standards, full compliance
cannot be achieved with an overlay.
Adding an overlay to your site may run counter to end
users' preference for privacy and may create risk of noncompliance with applicable
[privacy] regulations.
No overlay product on the market can cause a website to
become fully compliant with any existing accessibility standard and
therefore cannot eliminate legal risk.
Despite the above, deceptive marketing is almost universal among overlay vendors.
Below, we provide specific examples of false claims made by
Overlay vendors. [7] In summary,
the false claims made by overlay vendors fit into one of the following themes:
Adding the overlay product is the only thing the customer needs to
do for accessibility.
By using the overlay product, the customer's site will automatically become
compliant with the ADA (and other relevant regulations and standards).
By using the overlay product, the customer's site will automatically attain compliance
in an extremely short period of time.
By using the overlay product, the customer's website will automatically be
accessible to everyone.
By using the overlay product, the customer will automatically be shielded from
litigation.
The overlay product is the only one on the market that can make
the customer's site compliant.
The overlay product alone is sufficient in achieving compliance
without any other work needed on the underlying code.
In addition to the above, many of the overlay vendors also
claim the following which are highly dubious at best, and outright lies at worst:
Improved usability.
Increased rates of converting website visitors to
purchasers.
Exaggerated number of customers.
Claiming name-brand customers who are not actually
customers.
Collaboration with 3rd parties with whom they
have not collaborated with.
The product is a sufficient alternative to specialized
assistive technologies
Specific examples of false claims made by Overlay
vendors
This section contains one example for each of the types of
false claims made by overlay vendors. For the full list of gathered evidence
and associated data, please see this document's appendixes.
Claim: Adding the product is the only thing the
customer needs to do for accessibility
The most factually incorrect claim made by overlay vendors
is that adding the product to their website is the only thing the customer
needs to do for accessibility.
The Truth
In fact, no overlay product on the market can make a website
fully accessible, much less conformant to major industry standards. While some
overlay products can perform some behind-the-scenes repair of accessibility
issues, the extent of those fixes are exceedingly small. Additionally, the
"widgets" provided by overlays are most often a poorly executed
attempt at replicating capabilities that already exist in the features of the
user's browser and/ or operating system settings.
Example
The image below shows the EqualWeb product's font-size
increasing feature. The EqualWeb product only provides an increase of up to
150% while users of both Windows and macOS operating systems can increase
system font sizes several times higher and offer additional capabilities to
zoom the entire screen many times over.
Figure 2: Screenshot of the EqualWeb product after triggering the largest font size increase the
product offers. In this case it has increased the font size of text from 18px
to 24px.
This does not prevent overlay vendors from making the claim -
explicitly or implicitly - that adding their product to your site is the only
thing you need to do. In the example below, Allyable says "… we already
did all the work for you!" suggesting the site's owner doesn't need to do
anything else to make their website accessible once Allyable is installed on
the site.
Figure 3: Screenshot from Twitter status posted by Allyable
stating: "Need to make your digital assets accessible? No worries - we
already did all the work for you!". Screenshot taken October 21, 2021
Claim: By using the product, the customer's site
will become compliant with the ADA and other relevant regulations and
standards.
Overlay vendors frequently cite the specific regulations and
standards against which the customer's site will become compliant once
installing the product. This list includes the ADA, WCAG, and international
regulations such as EN 301 549.
The Truth
Because these products are incapable of repairing all
accessibility issues on a website, it stands to reason that they are also
incapable of delivering compliance with standards and regulations. Doing so
with automated means is completely impossible for many reasons, such as:
There
are no specific technical requirements for ADA Title III. While ADA-related
lawsuits and settlements tend to agree on WCAG 2.1 Level AA, this is not
codified by the law itself.
Section
508 and EAA/ EN 301 549 contain several items called "Functional
Performance Criteria[8]". These criteria are
typically very subjective, not clearly defined in a way that can be easily
tested by machines, and heavily dependent on context.
Some
of the Success Criterion in WCAG relate to things that change on the page
during user-triggered actions that cannot be detected by an overlay reliably
enough to predict what action it should take to ensure compliance.
Example
In the example below, Accessus.ai claims it is "the
only automatic solution" and that it can bring sites into compliance with
WCAG 2.1, ADA Title III, Section 508, EAA/EN 301 549[9].
Figure 4: Screenshot from Accessus.ai website claiming
it will bring a site into compliance with WCAG 2.1, ADA, Section 508 and more.
Screenshot taken November 5, 2021
Claim: By using the product, the customer's site
will attain compliance in an extremely short period of time.
Overlay vendors' marketing messaging preys upon the often-urgent
nature of potential customers' needs and/ or the concern that making a website
accessible will be difficult and take a long time. The overlay vendors'
messaging often contain such claims as:
"Up
to 48 hours from installation" - Accessus.ai
"In
up to 48 hours, your website is accessible and compliant" - AccessiBe
"Compliant
with ADA & WCAG Laws on Day 1 of implementation" - AudioEye
The Truth
As has already been established, these products cannot cause
a website to become compliant on their own in any period, much less the
extraordinarily short period of time they state in their marketing claims. Effectively
making an existing website compliant with WCAG can take several weeks to
several months depending on the nature and size of the website and the number,
nature, and severity of accessibility issues.
Example
The screenshot below, from UserWay, claims "UserWay's
solutions provide full WCAG & ADA compliance from day one, and every single
day thereafter".
Figure 5: Screenshot from UserWay's website claiming
"Full WCAG & ADA compliance from day one". Screenshot taken
October 20, 2021
Claim: By using the product, the customer's website
will be accessible to everyone.
A frequent theme among overlay vendors isn't just that the
customer's website will become compliant with major industry standards but that
the site will become accessible to everyone.
The Truth
Unfortunately, "accessible to everyone" is not
possible:
Some
cognitive disabilities are difficult or impossible to design/ develop for.
Some
accessibility changes may benefit one population while decreasing usability for
others.
This is why assistive technologies exist. When deployed on
the user's computer, either as hardware, software, or an alternate device
altogether, the user with disabilities can choose the necessary assistive
technology to assist with their specific needs.
Figure 6: Alternative communication devices on display
at an exhibitor's table at the annual CSUN Conference on Disabilities
Due to the extreme levels of variance in the nature, causes,
and severity of disabilities - and the possibility of a person having multiple
disabilities - no overlay on the market can provide a complete solution and
none have ever proven to come close.
Example
The below tweet from EqualWeb states "EqualWeb offers a
100% ADA WCAG 2.1 AA compliant solution that will make your website accessible
by all".
Figure 7: EqualWeb claims in this Twitter post that
"EqualWeb offers a 100% ADA WCAG 2.1 AA compliant solution that will make
your website accessible by all." Screenshot taken October 22, 2021
Claim: By using the product, the customer will be
shielded from litigation.
Due to the swift pace of litigation around Web Accessibility,
customers who have been recently made aware of a lawsuit against them, or
customers who are fearful of such a thing, are very receptive to the idea of
having a product that can shield them from litigation. Therefore, claiming
that they can do so is a very common theme from overlay vendors.
Figure 8: Screenshot of Google Ad from accessiBe which
contains the headline "Is Your Website ADA Compliant? | Avoid Lawsuits
with accessiBe". This ad ran in January 2020
The Truth
Despite the marketing messages of overlay vendors, their
claims of legal protection have been proven false. As shown in Appendix A, over
200 companies have been sued in 2021 despite already having purchased an
overlay. Of those lawsuits, the accessiBe product was present on 95 of those
sites on the day the lawsuit was filed against the defendant.
Example
MaxAccess.io boldly proclaims "Be Compliant & Avoid
Lawsuits. Make Your Website Accessible to Everyone" and "Avoid
Litigation. Maintain the Highest Level of Compliance 24/7"
Figure 9: Screenshot from MaxAccess.io stating:
"Avoid Litigation. Maintain the Highest Level of Compliance 24/7".
Screenshot taken October 21, 2021
In another example, Shir Ekerling, CEO of accessiBe,
proclaims in the LinkedIn comment below that "You have only seen companies
that have joined accessiBe to be a solution to their already existing legal
situation". This claim is demonstrably false because, as shown in
Appendix A, 95 companies were sued despite using the accessiBe product on their
site.
Figure 10: Screenshot of comment on LinkedIn made by
Shir Ekerling, CEO of accessiBe proclaiming "You have only seen companies
that have joined accessiBe to be a solution to their already existing legal
situation." Screenshot taken October 27, 2021
Claim: The product is the only one on the market
that can make the customer's site compliant.
Another common theme among overlay vendors is the claim that
they are the only vendor whose product can render the customer's
site compliant.
The Truth
Beyond the fact that these products don't do what they claim
to, the claim that they're the only one who can do so is untrue. While the
accessibility industry is quite small, there are several companies with the
domain knowledge, tooling, and development capabilities necessary to make
customers' sites accessible and compliant fully and completely with WCAG.
Example
On September 30, Allyable Tweeted "Allyable is the only
digital accessibility provider that gives an end-to-end solution… "
Figure 11: Screenshot from a Twitter post by Allyable
claiming "Allyable is the only digital accessibility provider that gives
an end-to-end solution… ". Screenshot taken October 21, 2021
Claim: The product alone is sufficient in achieving
compliance without any other work needed on the underlying code
A popular refrain within overlay vendor's marketing is that "one
line of code" is all that is needed. They claim that by adding one line of
(JavaScript) code, which contains the overlay product's code, the site will become
accessible. The follow-on claim, as shown below, is that there is nothing else
that will need to be changed on the customer's site.
The Truth
This claim would be true if the products did what the
vendors claim they do, but that is not the case. In fact, it has been proven[10] that such
products are unable to correct accessibility issues in the following types of
content:
Images and other non-text-content
Forms
Document heading structure
Keyboard accessibility and programmatic focus management
Example
The below advertisement from UserWay states "No changes
to your website's Code. Fully Automated."
Figure 12: Screenshot of Google ad placed by UserWay
which proclaims, twice, "No changes to Your Website's Code". This ad
ran September 2021
Claim: Increased conversion rates
"Conversion" is the point in time where a
website's visitor performs a desired action that places them on the path toward
becoming a paying customer. Marketers measure conversion rates as a metric
that helps determine the effectiveness of their marketing efforts. Some overlay
vendors claim that you will increase traffic and/ or increase conversions
simply by installing their product.
The Truth
Increasing a website's accessibility is often claimed to be
a means to increase conversion, though most discussion on this topic is based
on little more than conjecture. Nobody, overlays vendors or anyone else, has
ever provided sufficient evidence to prove that accessibility improvements
alone will result in increased conversion rates.
Example
In the example provided below, ActiveIntent claims that you
will increase conversions by 30% - a number that should be seen as ridiculous,
in the strictest sense of the word, because a conversion rate of 30% is 4-7x
more than what many marketers understand to be a good conversion rate.[11]
Figure 13: ActiveIntent claims that using their
software will increase conversion by 30%. Screenshot taken October 20, 2021
Claim: Exaggerated number of customers
According to Robert Cialdini,[12] Social Proof is
one of the most powerful influencers. In e-commerce, the impression that a
specific peer of high esteem has purchased your product can help influence a
customer to buy.
The Truth
Overlay vendors frequently exaggerate the number of
customers they have. By exaggerating this number, overlay vendors make their
products seem to be more popular than they really are. In fact, as shown in
Appendix F, overlay vendors often overstate their market penetration 3-fold or
more.
Example
In the example below, EqualWeb claims to be installed on
100,543,679 web pages. In this case, "web pages", as a term, is a bit
ambiguous. One can reasonably assume that "web pages" is not the same
as "sites", which would be a collection of pages under a distinct
domain. However, according to data gathered for this report, the number of
sites that have installed EqualWeb is close to 6000. Even if we assume a
rather generous 500 distinct pages per site, EqualWeb is still overstating
their claim by over 300%. As shown in Appendix D these claims of market
penetration can often be exaggerated significantly.
Figure 14: Screenshot from EqualWeb, claiming that
their product is installed on over 100 million web pages. Screenshot taken
November 5, 2021
Claim: Specific brands as customers which are not
Like above, when it comes to Social Proof, a list of
impressive customers can go a long way toward impressing those who may be
similarly inclined to purchase the product.
The Truth
When it comes to overlay vendors, there's often a disconnect
between their actual customer list and their claims. They often use names,
logos, and testimonials of impressive companies with which they do no actual
business. Another tactic used is to add the logo of a multinational corporation
on their site, lending the impression that the entire corporation is a
customer, when only a small, local subsidiary is the customer.
Example
Allyable has an impressive list of logos on their home page
under the heading "Trusted By". Among the logos are companies like
Diverse Ability Magazine, AudioCodes, Bank Hapoalim, and Microsoft, none of
whom are Allyable customers. In fact, 10 out of the 15 companies listed are not
Allyable customers, 1 is a reseller, and 3 are customers of a reseller. In
other words, only 1 of the companies listed is a direct customer of Allyable.
Figure 15: Screenshot from Allyable.com claiming to
have several customers that they don't have. Screenshot taken October 26, 2021
Claim: That the overlay widget is a suitable
alternative to assistive technologies
The "widgets" that form the bulk of the
functionality of overlay products present controls that transform the site's
appearance and features in ways that they claim make the site more accessible
to end users with disabilities.
The Truth
In nearly all cases, the "enhancements"
facilitated by overlay products already exist on the user's computer when
purchased. In Windows, these features are located under "Ease of
Access" settings[13],
and in macOS they are in "Accessibility" within System Preferences[14]. Additionally,
many accessibility preferences can be set within the user's browser. Users can
also purchase specialized assistive technologies - both hardware and software -
for their particular disability and preferences.
The fundamental absurdity of overlay vendors claiming that
their product is useful as an assistive technology is that the claim fails to
acknowledge that their product is poorly placed in the technology stack:
If a user needs larger text on a website, they need larger text on all sites and
applications
If
a user needs a high-contrast mode on a website, they need it on all sites and
applications
If
a user needs text read aloud on a website, they need it on all sites and
applications
The claim that the overlay widgets are useful in overcoming
accessibility barriers strategically ignores the fact that users who need
those features on a specific site will need those features to start the
computer, open their browser, and navigate to the site in the first place.
The last reason that these products are not a suitable
alternative to assistive technologies is because they often do not perform as
well as the user's built-in assistive technologies.
The
font size adjustments often do not increase to the same levels. For example,
Allyable, AudioEye, and UserWay only go to 200% while EqualWeb and MaxAccess
only go to 150%. Built-in features for Windows and macOS go much larger.
None
of the overlay widgets' high contrast modes offer the variety, granularity, or
customization capabilities of Windows or macOS
Example
The most egregious example of this type of claim is the one
below, from UserWay, who proclaims "Unlike standard screen readers,
UserWay's is engineered specifically for websites. Over 40 languages. Multiple
reading speeds. A seamless experience for all."
These claims are particularly deceptive because:
As
already mentioned, if a user needs a screen reader, they will need it to assist
them in navigating to a website that has UserWay's product installed.
The
different languages that can be supported is dependent upon the speech
synthesizer that is on the user's computer.
Depending
upon the supported speech synthesizers on a user's computer, JAWS and NVDA
("standard" screen readers implied by UserWay) can support
approximately 80 languages.
UserWay
only supports 3 reading speeds ("normal", "fast", and
"slow"), whereas real screenreaders can typically offer specific
word-per-minute granularity and some blind screenreader users can listen to
their computers at 450 words per minute[15].
Figure 16: Since-deleted Tweet from UserWay, dated November 3, 2021, suggesting that their
widget
is a suitable alternative to major screen readers
Claim: Collaboration with 3rd parties with whom they
have not collaborated with
Another way an overlay vendor can use Social Proof to
convince potential customers that their product is respectable is to claim that
they've collaborated with others in the industry to drive innovation in their
product.
The Truth
While there may be cases where overlay vendors are in
contact with the general community of users, in many cases the accessibility
field shuns overlay vendors. In June 2020, for instance, the National
Federation for the Blind (NFB) went so far as to say, "… the Board [of NFB]
believes that accessiBe currently engages in behavior that is harmful to the
advancement of blind people in society."[16]
Example
On August 21, 2019, a representative from accessiBe, named
Pamela, claimed that accessiBe had collaborated with JAWS developers on the
accessiBe product, stating[17]:
For more than 18 months, our
Research & Development process focused on working back to back with people
with different disabilities, even prior to our first live version. The process
also included leading experts in accessibility, as well as a developer from
the JAWS team whom, as you may know, is an eminence in screen-reader technology
in the world today.
According to blogger and accessibility consultant Adrian
Roselli, this claim was false. He received communication from Vispero/ Freedom
Scientific, the maker of JAWS, which stated:
"Neither Vispero nor any of
its developers have ever worked with accessiBe relative to any products and
services." Roselli also identified two other instances in which accessiBe
made this false claim.[18]
Conclusion
Although standards and technologies are available - and have been available - to make websites accessible for
over 20 years, we still live in a world in which the majority of websites are designed without accessibility
in mind. Consequentially, most websites contain significant challenges for people with disabilities.
Thankfully governments understand how important Accessibility is for equitable access to the digital world
and, as a result, every major economic region in the world has laws mandating accessibility. In the US we
have laws such as the ADA, The Rehabilitation Act, CVAA, and Air Carrier Access Act.
Federal, State, and Local government websites must comply with accessibility requirements. In recent years,
lawsuits have resulted in a widespread recognition that most private companies must comply. For those who do
not comply and who then receive legal complaints penalties can be painful.
Providing a solution for this problem is a very healthy business model - especially if you can do it quickly,
cheaply, and with minimal disruption to the existing User Interface. This is the false promise made by
overlay vendors.
The fact remains, however, that technology does not yet exist to cause an already existing website to become
fully compliant with existing laws and standards without modifying the design, structure, and features of
the site. This usually takes time, money, and disruption to the development process to insert the missing
accessibility pieces. Accessibility experts provide consultation on these processes, helping companies
establish new development processes such that their digital technologies become accessible each time from
the beginning.
Accessibility experts, advocates, and end users with disabilities agree that overlay products are not fit for
task of ‘fixing’ inaccessible websites. Nonetheless, vendors of these products continue to traffic in false
claims that they possess the technology to make a website accessible and eliminate the risk of a lawsuit due
to disability discrimination.
These false claims are insidious:
While the false claims in the diet, fitness, or male enhancement industries prey on the buyer, the false
claims of overlay vendors prey on the buyer while also facilitating discrimination against people with
disabilities. Based on the evidence provided in this report, overlay vendors are in the practice of
convincing their customers that all the customer needs to do is install their product for
near-instantaneous, around-the-clock, full compliance with industry accepted accessibility standards and
that, as a result, the customer will be protected against an accessibility-related lawsuit. Naturally,
this means that the customer will pursue no additional means of ensuring that they are providing an
accessible experience on their website. The result is that the customer's website is not made
significantly more accessible and that end users with disabilities are still unable to gain full and
equal access as required by law. In short, overlay products perpetuate discrimination against persons
with disabilities through their false claims and should be held accountable.
There is an industry of accessibility consultants and professionals who are working to help
organizations to make more accessible websites through (what is widely considered to be) legitimate
means. The costs to organizations to remediate their inaccessible content come in the form of payment
for expert assistance; time for conducting a thorough job; and the provision of internal resources to
adjust their previously accessibility-deficient development and testing processes. The false claims made
by Overlay vendors (i.e., solutions are cheap, quick, and with minimal disruption) undermine legitimate
accessibility consulting business practices. This is unfair competition. In addition, for the companies,
their development and testing personnel who should be receiving accessibility training to enhance their
own professional development are instead (unknowingly because of false advertising) receiving the false
narrative that accessibility is ‘solved’ using an Overlay. This is antithetical to the
underpinnings of the ADA and related laws, that accessibility should be a shared responsibility to solve
a societal problem.
