- [Caren] Hi, everyone. Welcome and thanks for joining us here today. I am Caren Decter. I'm a partner in the Litigation Group at Frankfurt Kurnit and I'm here with Glenda, the good witch from Deque. And our presentation today will be in two parts. I will start off by presenting the current legal landscape for website and app accessibility under the ADA. As a partner in the Litigation Group, I have a tremendous amount of experience helping clients navigate and resolve these types of litigations and we'll share my insights both personally as well as from just being very familiar with this case law. And then Glenda will really explain to you, well, what does that mean? Now we understand the importance and the need to be accessible. How do we go about doing that? So we'll start off with Title III of the ADA, which is how we get here in the first place. So Title III of the Americans with Disabilities Act requires private sector businesses that serve as places of public accommodation to remove access barriers that hinder a disabled person's access to goods and services. Title III of the ADA reply, applies, excuse me, regardless of the size of your business. So on the next slide, there are several different types of disabilities that we consider. Although most of the litigation involves individuals with visual and hearing disabilities, there's also litigation that involves motor and physical disabilities, speech disabilities, as well as cognitive disabilities which Glenda will get into a bit later. So on the next slide, now that we understand sort of what a disability is, what does it mean to discriminate against an individual on the basis of their disability? So as you can see from the text of the ADA, which is the first bullet point, discrimination includes a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently than other individuals because of the absence of auxiliary aides and services unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good or service being offered or would result in an undue burden. So the DOJ who's charged with implementing the regulations and the rulemaking for the ADA requires that places of public accommodation furnish appropriate auxiliary aids and services where necessary to ensure the effective communication with individuals with disabilities. So what are auxiliary aids and services? These are listed in the regulations put out by DOJ, but they include American sign language interpreters, captioning, compatibility with screen reading devices, which we'll speak about in a moment, as well as audio description. So if we turn to the next side, the next slide, excuse me, let's talk about Title III and its applications to websites and apps. So traditionally, the ADA concern physical access barriers to stores and restaurants and movie theaters and the like, however, over the past several years we've seen thousands of lawsuits mainly in New York, California, and Florida, that have been filed on behalf of visually or hearing impaired individuals on the theory that, one, commercial websites qualify as places of public accommodation, and, two, websites and apps with access barriers, for example, if they're not compatible with screen reading software. And let me just pause 'cause some people might not be familiar with what that means. It's software that sort of sits on top of a website and vocalizes the visual information on a computer that would not otherwise be available to someone who's either blind or visually impaired. So meaning, there's an image, a photo on a website. Someone who's visually impaired has no idea that even that's there. And so the screen reading software, if there's appropriate alternate text embedded into the website, can sort of read back to that individual what that image is. So for websites that have these access barriers, the theory is that they deny the plaintiff's right of equal access in violation of the ADA, as well as corresponding state disability laws. So we see no sign of this slowing down. Hundreds of these lawsuits are being filed each week. Those numbers don't even capture the amount of demand letters 'cause there are some plaintiff's firms who prior to commencing a lawsuit they will send a demand letter in advance. We've seen that industries in the retail, hospitality and banking receive the most lawsuits, but I remember about a year ago or a year and a half ago, basically every art gallery in New York got hit with one of these lawsuits. There's been small doctor's offices being hit with these lawsuits. It really runs the gamut. And I don't think anyone with a lawsuit is safe from this. It's mainly being filed by private plaintiffs often who are tester plaintiffs who just for the... They visit websites for the sole purpose of assessing its accessibility. And they apply to both individuals of visual and hearing disabilities. The internet is mainly a visual place, but there's a lot of audio and video content now up. In terms of damages, what are plaintiffs seeking in these lawsuits? Under the ADA, it only allows for what's called injunctive relief, meaning you have to remedy the access barriers and make sure that they don't crop back up, as well as attorney's fees. So that's the incentive for these plaintiffs' lawyers to sue. But under the state disability laws, many have statutory damages. For example, in New York, a plaintiff is entitled to $500 per violation. In California, under their state disability law, the Unruh Act, it's up to $4,000 per violation. So we see a lot of these lawsuits being filed by a very small number of plaintiffs' law firms on behalf of a set group of tester plaintiffs for the most part. So if we go to the next slide, what does it mean to be accessible under the ADA? How do you define digital accessibility? So the Worldwide Web Consortium, W3C, which is the main international standards organization for the internet, has published the Web Content Accessibility Guidelines, which we all call WCAG, for companies to use as the gold standard of ADA compliance. While these are private industry standards, they had been widely adopted, including by federal agencies which conform their public-facing electronic content to WCAG. In addition, the Department of Transportation requires airline websites to adopt these accessibility standards. And notably, the DOJ, when they have been involved in these litigations and have entered into consent decrees with defendants, have obligated those defendants to remediate their websites and apps so that they comply with WCAG. WCAG is currently on version 2.1 and features a tiered system of A, AA and AAA compliance, which Glenda will explain a bit later, with AAA being the highest standard. And there's rumors that a WCAG 3.0 is on the way. So if we go to the next slide, the first question clients often ask me when they receive a demand letter or are served with a lawsuit is, "Do I have any defenses? What do I do?" And the first issue is that the main way that defendants and clients get on a plaintiff's attorneys radar is that they have these automated tools that scan the websites. Glenda will speak about these a little bit more, but something like a WAVE, which is an open source tool, and can scan a webpage and pull up whether there are suspected or actual access barriers. So, a plaintiffs' firm will scan a bunch of websites, have a printout of a list of websites that come up with red flags and start sending out demand letters or start suing. So it's very rare to not have any issues with a website or an app. These are living, breathing things that are constantly being changed and added to and supplemented. And so then the next question is, "Okay, well, I did come up with a couple red flags. I'm not actually sure if they are in fact accessibility barriers, but it's going to be very hard to convince a plaintiffs' lawyer to walk away entirely if something comes out. And in addition, a court is unlikely to side in the first instance on the basis of a pleading where a plaintiff said there are access barriers, a defendant said, no, there actually aren't. I'll get to a case that's helpful on that a little bit later, but in the most instant, it's not gonna resolve the case immediately. Most often the court will say, I need some more facts, some more documents, some more evidence to be able to decide this. So then we're back at the question: "So what do you do? What defenses are there?" Well, we discussed earlier that the ADA applies to places of public accommodation and 12 different categories are listed, like restaurants and movie theaters and schools and doctor's offices, and those all sound a lot like brick and mortar places. So when these lawsuits first started getting filed the main question was, is a website even a place of public accommodation under the ADA? And courts have really been split on this issue. Courts in the Third, the Sixth, and Ninth and the Eleventh Circuits have held that a website is only subject to the ADA if its use involves a nexus or a connection to a physical brick and mortar store. For example, the Ninth Circuit, which covers among other places California, has held that Title III does not apply to online-only businesses, such as eBay and Netflix. Now that's been complicated, however, by California state court rulings. So as I mentioned, there's the ADA which is the federal law, but California also has the Unruh Act. And there has been one plaintiffs' law firm in particular that's been very aggressive in trying to make favorable case law that even if the Ninth Circuit has decided that online-only businesses shouldn't be subject to the ADA, that doesn't mean that under California state law that online-only businesses need not worry about accessibility. And there's been a couple recent California state court decisions at the trial court level that have refused to dismiss lawsuits against online-only businesses. So if you're encountering this particular plaintiffs' law firm, it's not gonna help you to just say, we don't have a brick and mortar store. It's also important that websites are available to people all over the country. So just because you might be okay in one jurisdiction, it doesn't necessarily mean that you're not gonna have a problem in New York, or in Boston, or a place like that. And if you're in the Second Circuit the First Circuit, the Seventh Circuit, those jurisdictions have interpreted the ADA to apply to websites not connected to a physical space. Again, in that case, Netflix was found to have to comply with the ADA. One other area that has been somewhat successful especially in a credit union context has been a lack of standing defense. As I mentioned, many lawsuits are filed by tester plaintiffs who just visit websites solely for the purpose of testing ADA compliance. And in these credit union cases, defendants had argued that plaintiff had not alleged that he or she is eligible for membership in that defendant credit union. Entities in the Fourth, the Sixth and the Seventh Circuits have been successful in getting these lawsuits dismissed for lack of standing 'cause plaintiff had failed to allege that he or she was in fact injured. Meaning if plaintiff could never be a member of the credit union, then what does it really matter whether or not the website was accessible to them? But again, that's a pretty narrow category. Most businesses in the retail sector and the hospitality sector are open to everyone, but I suppose if you were a website of a doctor's office in New York and you were being sued by someone in California who had never been to New York and has no reason to ever visit a doctor in New York, you might have some greater success on this standing defense. Finally, another defense that has had some slight success is that remediation issue that I discussed earlier. In the Diaz v. Kroger case, a legally blind plaintiff sued Kroger, which is an Ohio-based supermarket chain, alleging that its website was not fully accessible. And in support of its motion to dismiss the action, Kroger submitted an affidavit stating that it, after having received the complaint, it had reviewed and remedied all the alleged deficiencies in its website and that there weren't any issues and there wouldn't be any more issues going forward. The court found that Kroger's remediation efforts and commitment to future monitoring of the website mooted plaintiff's claims. Well, this was a really promising defense-friendly decision and also an accessibility-friendly decision of rewarding a defendant who had immediately attended to and removed any alleged access barriers. It stands in contrast to a number of other decisions from that same court, the Southern district of New York, who had rejected similar mootness arguments either because defendant's website remediation efforts were not complete or were not as well documented. Another thing to keep in mind with this mootness remediation concern is that where our plaintiff is also suing under state law, while there might not be a basis for injunctive release going forward under the ADA, a lot of these individuals state that they're still entitled to their statutory damages for the barriers that they encountered prior to the remediation. So if we go to the next slide, what hasn't worked as a defense? So as I mentioned earlier, if you're in those non-nexus jurisdictions it doesn't matter whether or not your website is connected to a physical store or brick and mortar structure. The second is a due process defense and this was a really popular defense when these lawsuits first started getting filed. Meaning that, as I mentioned earlier, DOJ has been charged with rulemaking for the ADA and hasn't definitively come out with what it means to be ADA compliant. So in the Robles v. Domino's case in a recent case in the Ninth Circuit, Domino's had argued that it did not have fair notice of a legal obligation to comply with the WCAG guidelines given the absence of a clear guidance from DOJ as to what constitutes digital accessibility. The Ninth Circuit, however, flatly rejected this argument holding that the ADA itself and existing guidance already articulated comprehensible standards that websites must provide full and equal access to the disabled and to ensure effective communication through appropriate auxiliary aids and services. And this notion that, we didn't know we had had to be accessible, DOJ never told us exactly what that meant, the court did not buy that argument. A similar primary jurisdiction defense was also raised in the Domino's case and in several other cases and has been pretty universally rejected. So what is the primary jurisdiction doctrine? It means that where an agency with specialized expertise is charged with setting forth guidelines, we should really wait to hear what they have to say before courts step in and define digital accessibility. So in 2010 DOJ had announced that it was considering revising its Title III regulations to specify guidelines for web accessibility. People waited, and waited, and DOJ never came out with anything. And then in December 2017, they stepped away and withdrew its proposed ADA rulemaking after nearly eight years. So the Ninth Circuit in considering this issue said, you know, waiting for the DOJ to provide guidance at some undetermined future date would just create unnecessary delay and that courts are perfectly capable of interpreting the meaning of equal and effective and they don't need to wait for the DOJ to explain to them exactly what that means. So the third bullet point here are prior settlements/consent decrees, and this has been mainly in the pre-litigation context that just because you've been sued and entered into a settlement with another defendant doesn't tend to protect you. Sorry, someone just asked, "What is DOJ?" Department of Justice. Does it mean that you can't be sued again? As Glenda will discuss, really the only and best protection against future lawsuits is to ensure WCAG compliance. So this is why most cases settle. Most websites have some problems. Whether they truly constitute accessibility barriers is debatable, but it's enough that a plaintiff's not gonna walk away and that they're just not that many defenses available. So before I go into settlement considerations, given that most of these cases settle, I just wanna touch on, if we go to the next slide, some specific issues concerning lawsuits involving the accessibility of videos posted on websites and social media. This is a question that I know personally I'm getting more and more from clients and we're seeing more and more litigation. Whereas previously, in the cases I discussed really involved plaintiffs who were visually impaired and the allegations were that the websites were not compatible with screen reading software, these cases involving video concern issues like appropriate captioning and audio description, which I'll explain in a moment, and the accessibility of this content to individuals with hearing loss or hearing disabilities. So the first case that I'll discuss is actually the second bullet point: National Association of The Deaf vs Harvard, and there was a very similar case filed against MIT. And this organization sued Harvard and MIT over whether the institutions were required to provide accurate captions on their video content, including for online courses, podcasts, and certain live streamed events. DOJ filed a statement of interest in both cases, supporting plaintiff's position. Harvard moot for judgment on the pleadings, at a minimum arguing that it should not be responsible for the accessibility of video content appearing on third-party sites, such as YouTube, and content that is merely hosted or embedded on Harvard's website. The court, however denied Harvard's motion. As to content posted on third-party sites like YouTube, it noted that this is really an affirmative defense and the issue of whether Harvard controls this content on third-party sites required further fact discovering. For example, if Harvard, if it was through an official channel versus something that just a third party posted on a third-party site, that the court wasn't prepared to address that issue just on the basis of plaintiff's initial filing the complaint. So after a four-year, very expensive legal battle and the motion for judgment on the pleadings denied both Harvard and MIT entered into very similar consent decrees. And I think these consent decrees were remarkable for a couple of reasons. One, it didn't just require that Harvard put captioning on its content. It required that Harvard put accurate captioning on. And I think this is what Glenda's going to speak to a little bit later. It really called into question whether utilizing the auto captioning on a service like YouTube or Facebook is enough to provide effective communication to individuals with hearing disabilities. We haven't really seen this be litigated and a court actually come out and say that the auto captioning on YouTube isn't enough, but I think we're gonna see some cases challenging this going forward. Additionally, it required captioning on legacy content on YouTube, at least for the official channel for these institutions upon request and it awarded $1.575 million in attorney's fees, which is a pretty remarkable number. The next case I wanted to discuss involves the audio description issue or video description that I mentioned earlier. So video description, as Glenda will explain later and I'm sure do a much better job than I will right now, is the insertion of audio narrated description of a program's key visual elements. So imagine that you are a blind individual watching a horror movie and relying on the captioning to communicate to you what's going on. If in a certain scene, there's a woman hiding in a bedroom with the sheets over her head and someone is creeping up silently with her on her, this sounds very morbid, with a knife, the audio captioning is not gonna capture that visual element and the blind individual is going to miss out on some very significant aspects of this horror film given that that description is not being provided. So here plaintiff argued that Hulu was required to provide descriptive narration for all the content on the Hulu site. Hulu said this was incredibly over-broad. First, Hulu pointed to the fact that the FCC which regulates broadcast networks had previously issued a report on the issue of whether Congress should compel internet streaming services like Hulu and Netflix to provide video description and recommended that it not. And Hulu noted that the CVAA, the 21st Century Communications and Video Accessibility Act, which requires broadcast networks to provide descriptive narration, only does so for a subset of its programming. Whereas here, our plaintiff was seeking to require an internet streaming service to provide video description for all of its content. And Hulu raised a very interesting copyright defense as well in that arguably the creation of a video description for content in which they have no rights would be an unauthorized derivative work in violation of the Copyright Act. So Hulu was making a distinction between at least content that they owned and produced or held rights in and content that they held no rights in, say, "The Lion King" movie or whatever else is on Hulu. So the case settled prior to the court issuing a ruling. And again, the settlement is interesting for a couple of reasons. One is that it obligated Hulu to obtain audio description tracks for as much streaming content as possible. So for whatever they had on their site, just try and go and get whatever they could from the rights holders, for newly licensed content, to request audio description tracks in all new contracts it enters into, and then for Hulu-produced content or content in which it owned, it had rights, to provide the audio description tracks. Well, finally, I just wanted to, since we're on Zoom, to note the Kane v. Zoom case, which Glenda and I were actually discussing briefly before we started. So here it's a case that was recently filed. There's been no response of pleading yet, but the plaintiff was arguing that Zoom as a platform its failure to provide captioning for meetings hosted by any of its customers, that that was a violation of ADA because they require an individual who wants to rely on captioning allegedly to purchase some sort of software to support the captioning, and that's effectively a surcharge. And I think if this case goes forward, and most of these don't, it really calls into question what the responsibility of a platform like Zoom has for content that it really has no control over. I mean, even in this meeting today, I don't have a script. I didn't know exactly what I was gonna say beforehand. That's why we have a captioner here who's providing a live stream to you all. And the social media site, for a while Instagram wasn't even offering auto captioning and people would have to use a plugin to put the captioning onto it. And I think more and more you're seeing platforms, at least at a minimum, offering a player that has some AI-powered captioning or auto captioning. And I think the quality can really vary, as Glenda we'll discuss in a bit. Okay, so my last slide just talks about settlements, and then how to prevent lawsuits. So, as I mentioned, the majority of these cases settle early, given that plaintiffs are often willing to accept less than the cost of a motion to dismiss to make the case go away. And so you never know what a court's gonna do and if you can get certainty for less money, that is a huge incentive to settle. Clients often ask me whether they should enter into a consent decree as opposed to a traditional settlement. And I think the main thought process is that if it's a consent decree, it will somehow have a greater deterrent effect against other lawsuits. The problem is, is that a plaintiff who was not a party to the prior consent decree can't sue to enforce it. So these really haven't in my experience mattered to plaintiffs' lawyers and I'm always very cautious about my client entering into a consent decree, and then opening themselves to being held in contempt for violation of a court-ordered consent decree versus just having a private settlement. So I don't tend to recommend these to my clients. Confidentiality. One thing I do recommend goes into these settlement agreements is the ability to share the settlement, maybe not the payment terms, but the rest of it to other perspective plaintiffs. Again, this doesn't always work, but I think it shows that you've already been sued, you've settled, and you've committed to remediating your website to comply with WCAG. And sometimes it does help. And I don't wanna foreclose your ability to be able to share that with a prospective plaintiff, releases to try and get the broadest release possible. And also making sure that sometimes plaintiffs' lawyers sue the wrong entity, don't actually sue the entity that actually owns and operates the website and making sure that all the entities that need to be released are released. And again, the last question, whether these actually protect against future lawsuits, usually not, unfortunately. The only protection, as we'll lead into Glenda's next discussion, is to actually comply with WCAG. So how to lower your litigation risk? There are these online tools, as Glenda will describe, Axe and Wave and many plaintiffs' lawyers use them. And if you get a clean bill of health from these online tools, there's a good chance you can avoid getting sued. It doesn't necessarily mean that you have no access barriers on the website. These aren't perfect, but they're a pretty good indication as to whether or not you'll show up on a plaintiffs' attorney's naughty list. Captioning and audio description. Checking all your digital presence, your presence on social media, making sure that if you're linking videos or embedding videos, that you're also importing at least at a minimum the auto captioning, if not adding captioning to content that you yourself own or produce, remediation, as Glenda will discuss. And lastly, an accessibility statement with an email and phone number, these are becoming more and more popular. It's an open question as to whether having a 24/7 phone number to assist individuals who are having accessibility issues with your website, whether that is enough to ensure effective communication. This was raised in the Domino's case in the Ninth Circuit that I discussed and the court said, "We can't decide that on a motion to dismiss. We don't know if it was actually staffed 24/7, if the people on the phone could actually help," but I think it goes a long way into promoting inclusion and accessibility. It's also a really wonderful way to get feedback from actual customers who might be facing barriers. And it's important to know it's not just about lowering litigation risk. It's really about inclusivity and accessibility and ensuring that all customers, regardless of a disability, are able to access your website. So I'm gonna turn it over now to Glenda who can speak about the more practical technical aspects of what I discussed. - Awesome, thanks so much, Caren. So Caren has laid a fantastic foundation and I just wanna emphasize it. I am a digital accessibility expert that has been working in the field for more than 20 years. And I just want to reinforce, Caren was absolutely correct. How do you measure digital accessibility? Next slide. There's one answer: it is W-C-A-G, the WCAG standard. There are three levels of it. I'm going to discuss them in a tiny bit more detail, but it's gonna be the A and the AA level. These are simply the international standard for digital accessibility. It is the ruler. So on the next slide, if you're new to this, if you've never heard accessibility geek like me saying WCAG, I want you to understand that the W-C-A-G stands for: Web Content Accessibility Guideline. That's a mouthful. So we shorten it and call it WCAG. In your brain, I want you to scratch out the words, web and content. I want you to replace them with digital accessibility guidelines, 'cause these guidelines were built to not just apply to the web. They apply to anything digital, including our phones. Level of compliance, as Caren mentioned, can be at the A, AA or AAA level. I love accessibility and I would love to inspire you to do everything you can possibly do, but I wanna be really pragmatic. That AAA, that highest level of conformance is not recommended as a legal requirement. So don't try and shoot for that at first. In every legal standard I've seen, it's A and AA. The only ones that brought in A first were Canada, because they're so polite. They brought in A, and then they gave you time to get to AA, but all other countries have just gone straight to A and AA. So just a little bit on the WCAG to enforce exactly what Caren said. Now imagine accessibility is fairly new to you and you just want to know, what are three things that I can do? So next slide is I wanna share some easy first steps. It's simple. You can do this yourself. You don't have to, but keyboard testing, I wanna give you a little glimpse of form labels and I wanna emphasize what Caren said earlier about the value of automated testing. This is not gonna cover all things, but it's a fabulous first three steps. So what if you couldn't use your hands? This is a picture of a dear friend of mine, Gene. We're at the powwow in Austin. And Gene, due to a diving accident, cannot use a mouse. And so when he types on his keyboard, very intelligent man, runs a radio show, he uses a mouth stick 'cause he can control his head and his neck. And so the advantage of you just picking up this knowledge of, can you use this website without touching your mouse or without touching your mouse pad, can you just do it with your keyboard alone, is the test. So my next slide is simply, you don't even need any tools, you're just gonna use your computer and your keyboard and check, is this site usable without a keyboard? The wonderful thing about me introducing this concept to you is your teams can pick this up quickly. You can pick it up quickly. As well, it helps two disability categories. Not only does it help friends like Gene who can't use a mouse well, but it also helps people who are blind. Because if you think about it, a mouse is required for you to see where the pointer is. And so it's also helping people that are blind when we make sure that everything is keyboard accessible and not mouse dependent. So, first step. Second step, I wanna introduce you to the concept of form labels. Caren explained earlier what it may be like for a person that can't see to use a screen reader. And so I wanna show you how important it is to connect form labels with form fields. And as we look on the next slide, I have an example of a car site where we can go shopping for a car. And for those of us who can see this site, there are some checkboxes where I can pick the make and the model and I see the word Toyota next to a checkbox and I see the word Chevrolet next to a checkbox. And I'm using a visual association of these things are close to each other. If those are not programmatically attached, do you know what they sound like to a blind person using a screen reader? It's just gonna say, checkbox, checkbox, checkbox. They're not gonna know what it means. So over on the left of the screen, I actually have pulled up exactly what a screen reader says on forms that aren't labeled properly. And in this case, it says a lot of, combo box button, combo box button. You have no idea what it is. So form labels are important. Conceptually, I wanted to share this with you. From a testing standpoint, you don't need to know how to use a screen reader to test this. I'm gonna take you to the best step you can take first and that's easy automated testing. So a tool that I'm gonna recommend is a free open source extension called Axe. You can run it in a browser. It's gonna give you a list of accessibility issues that can be discovered automated-ly. In this tool: description of the problem, the exact line of code fixing the problem and how to fix it. And did I mention, it's free. So if you're looking for an easy place to start, this is a great place to start. On the next slide, I want to emphasize that never as an accessibility expert am I gonna tell you that accessibility is so simple that we can just press this easy automated button and all our problems are gonna be identified. That's not true. We're trying to figure things out to make it more true, but in this moment, auto testing pros are it's fast, it's free. And when you don't have any automated errors, it does help reduce your litigation risks. The cons, it cannot detect all issues. The manual testing, which is something I've been doing for 20 years, and I do understand it's very important, it's very thorough. That's the pro of the manual testing. The cons, it is time consuming and it requires special expertise. So I even have a logo of, I have to use my hands and my brain to make the manual testing happen. So I don't wanna leave you with a thought of, oh, you can just run an automated test and all your problems will go away. No, not exactly, but it's a wonderful place to start. On the next slide, I want to triple emphasize what Caren said. Many complaints use the results of automated accessibility testing tools to find their targets to litigate. So let's make that less, solve those problems. So for those of you who are already in the know about accessibility basics, I wanted to dive in deeper to video accessibility because as Caren and I were designing the content for this presentation, she said, "you know, one thing that is not being picked up by the automated tools is the video accessibility." And she's seeing very relevant complaints come through. So let's look at what the components are of video accessibility. So this is a much deeper dive. We're beyond the three easy steps here. In video accessibility components, I wanna take us through captions and transcripts, audio descriptions, flashing thresholds, and the video player itself. And I wanna give you a tip on a strategy for creating captions and audio descriptions that are quality and cost-effective. So video accessibility components, let's see who this helps. It takes a while for me to get these concepts into a brain that's never experienced them before. Captions I think many of us have experienced and we know that the captions are for the deaf. However maybe a large number of people on this call that have never used an audio description. Whenever I say audio description, that is for a person that is blind. We're also need to make sure for the person that's blind that the video player is accessible via keyboard alone. And we'll go over that in a little more detail. And then there's some cognitive issues that come into play in video accessibility and that has to do with flashing thresholds. I'll explain that in a moment, as well as making it clear how to use the video player. And last but not least, don't forget my friend, Gene. We got to make sure that he can play his videos without using a mouse. So thinking about these different disability types, let's dive into these definitions. I'm gonna go through them quickly. You'll have access to these materials. Transcript is a text representation of all three of these things: the spoken word, and identification of the speakers, and important sounds needed to understand the video. So it's not just what Caren or Laura or I are saying. If something is going on in the background that's a noise that's important to you understanding the content, that has to be in the transcript too. The difference between a transcript and a caption is that the transcript, it's just written and it's not attached to the video. It might be near the video, but it's not attached to the video. The captions are actually synchronized with the video so that a person that is watching the video is getting the caption and the transcript at the same time. It's synchronized, but it's the same pieces of information. And then audio description, which takes a little bit more wrapping your mind around, is for the blind. They're hearing everything. They're not looking at the caption, but they need to know when something is happening visually that's not described in any way in the audio yet that'll make them miss the meaning. As Caren said, scary movies are a great thing to use as a description. Imagine we're watching a horror film and you and I might be able to see shadow on the wall, what appears to be a man holding a knife. If all there is is scary music, the blind person's, I have no idea what's going on with the scary music. It's an important factor. So to take this further, on the next slide, because audio description is a bit hard to wrap your mind around, I wanna say this, an audio description is like a great sportscaster. It's an additional audio track. It's like a narrator track and it's kinda like Vin Scully painting a picture in your head with words. I looked up what's the best sportscaster ever. Vin Scully is easily in the top 10 and think about how he described the perfect game. You can watch a baseball game or a football game listening to audio alone when there's a really good sportscaster. That's what audio description is. Next slide, I want to give you kind of a homework assignment. Go in your favorite streaming service and look to see if you can get some audio descriptions on. I easily get them turned on in Netflix. They're not gonna be in all content, but it's there in many. There are other websites here where I have an example at the W3C where there's a big audio description button so you can add that narration track on top of the other video. Now this is in our digital space that I just showed you two examples, Netflix and W3C. Let's go to the next slide and I wanna for moment go outside digital space and let you know that audio description can even occur in live events. It can even occur when we get to be in person on Broadway shows. If any of you have seen Hamilton, there are two scenes where audio description is really important. There's a scene where nothing is said about the fact that Hamilton and Eliza are getting married onstage. It's all done visually. Audio description, really important. And when Aaron Burr and Hamilton are shooting each other, if you're blind, all you're hearing is a bang. You don't see which guy falls down. You need to know. That's not described. It's not described in the natural dialogue or the song. But the cool thing is, I went on Disney Plus, there is audio description. So you can turn it on and you can try and hear what it sounds like. Have another cool example if you wanna explore it, the presidential inauguration I think for the first time in history had audio description. And so in this presentation, there is a link to the audio description if you want to listen to it. With that said, I want to further into some other pieces that are really important. A flashing threshold is where we want to make sure, using the with WCAG standard, that we're not purposely causing an epileptic seizure. Not polite to drop somebody onto the floor. I'm not gonna go into the detail. Just know that commonly, you wanna have three flashes or zero, three flashes to zero in any one-second period. And that's an important thing to make sure that you're not causing that on purpose. So video content is one thing. The video player is a whole nother piece. As you're putting your video inside this player, it needs to be usable by keyboard alone. We need to be able to control that video to pause, stop or hide it. We need to be able to control the audio again, to pause or stop that audio. And best practice, please, if you can, don't auto play video or audio content. It's technically allowed in WCAG, but many of us will appreciate it if you don't auto play. So those are just some basics. And I wanna give you a gift. Guess what? There is an open source free accessible video player because why? Many people in the accessibility field have really big hearts. This is my friend, Terry Thompson. He is an accessibility expert at the University of Washington, and you can download his Able Player and it's exactly what the W3C is using. We're also using it inside Deque University. So I can attest it is an accessible video player that allows for captions and audio descriptions. So with that, I wanna mention something really critical. I have real detailed slides about auto captions and how they aren't good enough. They're not, but we don't have time in this hour for me to go into all that detailed research. I think Laura and I will be scheduling another session where we can include that, but I did wanna let you know, when it comes to captions and audio descriptions, I've tried to do this by hand myself, I think it's interesting and fun, it's wicked expensive if you're not one of these companies that does it. So for captions and audio descriptions, your best ROI is to outsource this. I have some prices here on screen. On captions, we're currently using rev.com, $1.25 per video minute. 3PlayMedia, CaptionSync have reasonable pricing. They're excellent firms. I've used all three. In the audio description space, remember that's the Vin Scully sportscaster play-by-play. Those are gonna be a little bit pricier. It is anywhere from 8.50 per video minute to 10 to $15 per video minute. So audio description gets pricier, but here are some good reliable places, and even some people that started the whole business. They're the international experts. With that, I can't just leave you hanging 'cause I told you about the first three easy steps, we deep dive into captions and audio descriptions and video players. There is more and we can't cover it all in an hour. So there's an Essential Guide to Digital Accessibility that can help you in a quiet moment. Download, read, understand why it's important, your business benefits, logical next steps to take, and how to determine whether your site is or is not accessible. It's just a free tool that we wanna offer to you from Deque. With that, I think we're at questions, and we have a grand total of three minutes. - So I tried to... I knew we were gonna be running short on time, so I tried to answer some of these during the break. One of them, I think Todd asked about statutory damages, what it means to have $500 per violation or $4,000 per violation. I will say I just received a demand letter from a plaintiffs' lawyer who said that every violation on a website entitled his client to $4,000. I don't think that's a correct interpretation of California law. The California courts, the few who have spoken to this have said, "it's per visit to the website and you don't add up every single little thing that is wrong with that." So Glenda, there are a couple questions on here about accessibility audits and running an accessibility audit. - There was one that I wanna pick up. - Sure. - Somebody asked about what WCAG 2.2 and 3.0. And what I wanna say is 3.0, don't be afraid of it. I think there's some wonderful things in it that even say don't expect perfection. Caren said, "Websites aren't perfect. They have bugs." I think Laura will be able to provide some information about upcoming presentation that we can do on 2.2 and 3.0. In the meantime, shoot for WCAG 2.1, be prepared to pick up the new things in 2.2 when that stabilizes, and know that in 3.0, you get to pick your version of WCAG. In other words, you could still go with WCAG 2.0 and be that your starting place and make sure there are no critical path errors so that a person with a disability can actually buy the thing or do the task. So just quick words. Anything else you wanted to bring up Caren? - No, I think this has been really helpful. Glenda, thank you so much for joining me. I think the practical aspects of what it means to actually try and remediate your website are really invaluable to certainly my clients and hopefully everyone else on this call. So thank you so much for doing this with me today. - I appreciate you as well. - And I think someone just asked for our contact addresses. Laura, are our emails on the slides or can we add them to the slides? - We can add those to the slides. And I was just gonna remind folks that we're gonna send those out in an email, as well as the recording or any resources that we referenced so that people have them and they're accessible. So we'll make sure to include that in the updated slides. - Sure, and then my final point is I saw a couple of comments or, "are making reasonable efforts enough for good faith efforts?" And if you're talking about trying to promote accessibility, I think it should matter and I think it shows your good faith, but in terms of preventing or reducing litigation risk, unfortunately it doesn't. I've had some clients who have had 60 errors using one of these Wave accessibility tools and I've had clients who've had one error and the entity with one error still gets sued. So it's really full compliance that matters. Although in settlement agreements, you will often see they'll make reasonable or commercially reasonable efforts to achieve compliance, but noncompliance with WCAG doesn't constitute a violation of a settlement agreement, you'll see that, but in terms of really preventing future lawsuits, it's true compliance that matters. So thanks everyone. Have a good day and hope everyone's staying safe and healthy and warm. - Thanks, bye bye. - Bye, everyone.