On January 3, the Federal Trade Commission (FTC) issued a press release announcing that accessiBe Inc. and accessiBe Ltd. (collectively, accessiBe) agreed to pay $1 million to settle allegations of deceptive advertising practices in violation of the FTC Act. Specifically, the FTC’s complaint alleged that accessiBe misrepresented the artificial intelligence (AI) capabilities of its website accessibility tool, accessWidget, to make websites compliant with the Web Content Accessibility Guidelines (WCAG). The FTC further alleged that accessiBe paid for reviews on third-party websites that were formatted to appear as the opinions of impartial authors and publications and failed to disclose material connections to such online reviewers.
Background
The WCAG are a set of international standards developed by the World Wide Web Consortium to explain how to make web content more accessible to people with disabilities. According to the FTC’s complaint, “WCAG includes accommodations for blindness and low vision, deafness and hearing loss, limited movement, speech disabilities, photosensitivities, learning disabilities, and cognitive limitations.” WCAG also establishes measurable “success criteria” for a variety of web content elements, including: text; non-text elements; use of color; navigation elements like menus, tables, and carousels; and means of navigating web content and engaging with interactive elements.
accessiBe extensively marketed an AI-powered software plug-in called “accessWidget” designed to correct website accessibility barriers, claiming that this tool could make websites compliant with WCAG within 48 hours. According to the complaint, accessibility overlays are not intended to permanently alter web code or design, but to permit temporary modifications to the user interface that may impact accessibility while visiting a web page — such as color contrast, text size, animated elements, and navigational components. The FTC alleged that accessiBe’s claims about its plug-in were false and misleading. According to the complaint, in a number of instances accessWidget failed to make basic and essential website components like menus, headings, tables, images, recordings and more, compliant with WCAG and accessible to persons with disabilities.
Additionally, accessiBe made claims about the ability of its software plug-in on the company’s website, social media, and in third-party articles formatted to appear as impartial reviews. However, the company paid for these third-party reviews and failed to disclose these material connections, which the FTC alleged misled consumers into believing the reviews were independent. The FTC described one example in which a blog post was formatted to appear as an independent review, but accessiBe paid $1,900 for the review and approved it prior to its publication.
FTC Order
Under the terms of the proposed order, accessiBe is barred from making unsubstantiated claims about its products’ capabilities and is prohibited from misrepresenting material facts about its products and services. Specifically, the proposed order provides that accessiBe must not make any representation, expressly or by implication, that its products or services, including accessWidget’s AI or other automated technology, can make any website compliant with WCAG, unless there is competent and reliable evidence to substantiate the representation.
The company would also be prohibited from misrepresenting third-party endorsements as independent opinions. The proposed order would require accessiBe to clearly and conspicuously disclose any unexpected material connections with endorsers, which includes any relationship that might materially affect the weight or credibility of a testimonial or endorsement and that would not reasonably be expected by consumers. Additionally, accessiBe will be required to pay $1 million to the FTC, which may be used to provide refunds to consumers.
Our Take
The FTC’s enforcement action serves as a critical reminder for companies to maintain transparency and honesty in their advertising practices, especially when making claims about the capabilities of AI. For those companies seeking to comply with the Americans with Disabilities Act, it is important to select qualified vendors that can assist with website accessibility and can deliver on their promises. Companies should be especially suspicious of widgets or overlays that promise quick solutions to complex technical requirements.