Digital Accessibility Landscape Q&A with Level Access and 3Play Media

The internet is a huge part of modern society, and nearly everyone with access to the internet uses it regularly. The internet puts the world at our fingertips, but is that true for everyone?

Though the internet continues to evolve and grow daily, most of the digital landscape is still inaccessible to people with disabilities. Millions of people are being denied access to the web simply because it was not designed with accessibility in mind.

But that can change.

In the webinar, The Digital Accessibility Landscape: What Your Organization Needs to Know in 2019, Lily Bond of 3Play Media and Tim Springer of Level Access discuss the current standing of digital accessibility on the web. They discuss how organizations are tackling accessibility for their digital media content and the future of accessibility standards.

Below is a transcript of the Q&A portion from the webinar, where Lily and Tim answer questions regarding accessibility legislation and content accessibility guidelines.

What will the impact be if the Domino’s v. Robles decision is reversed?

TIM SPRINGER: I would tell you it’s unlikely that it probably will be reversed. I’m a little bit outside of my depth, just because I’m not a Supreme Court watcher. But smarter people than me that have analyzed it think you’d probably get a narrow ruling rather than a broad ruling.

But let’s just kind of case that out. If you get a narrow ruling, it probably limits it doesn’t restrict the scope of digital accessibility. You probably have fewer lawsuits that are filed, and the overall growth in those lawsuits is lessened. And then the lawsuits probably just get a little more targeted.

So that’s kind of a narrow ruling. A broad ruling that basically says, hey, this doesn’t apply, would potentially remove the issue from the federal arena, and then would drop it into individual states. And then you would see enforcement of that then move into the states. And so as an example, you can still enforce a lot of this stuff under California law. You could potentially enforce it under some of the other states that are out there. And so we think that’s the likely path forward if you’ve got a really broad ruling and roll back sort of all of the application of the ADA digital assets– the issues with, maybe, the states.

Outside of that, you still see federal laws that aren’t ADA laws still apply. So federal funding under Section 504 of the Rehabilitation Act, particularly Medicare, Medicaid, and then CMS guidelines for health care providers, that are still covered. 508 is still covered at the federal expenditure level. There’s a bunch of other federal laws– 1557, ACAA, et cetera– where this is covered. So you would still see some federal laws that cover it, but certainly, the number of lawsuits would drastically drop.

If you got a broad ruling, you’d probably start to see state-level enforcement. You would potentially see more international enforcement, but we think that’d probably uncorrelated with that mostly. That’s more a function of time.

 

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Where can I find the legal requirement for audio description for video? And is it required for live captioning?

LILY BOND: Audio description requirements are written directly into Section 508 of the Rehabilitation Act in the refreshed version that was released earlier this year.

So specifically, the Section 508 requirements reference WCAG, or the Web Content Accessibility Guidelines, and you can find all of the specific requirements for video, I believe, under 1.2 of WCAG.

But for audio description, it only applies to pre-recorded video. And there are no real regulations for live audio description, which is much more difficult. I do know that sometimes that is required more under the ADA for live theater experiences. But I haven’t seen it applied to live streaming video at all.

And there are also some audio description requirements under the CVAA, but that’s more for broadcast video. We would be happy to follow up with those specific requirements if you have further questions.

Is there any data on education-related complaints, such as those at federally funded universities?

TIM SPRINGER: We do have a good bit of data on education-related complaints. We don’t have it in here. If you follow up via email, we can send you over. We also have a slide we can send you from our general accessibility trends. Basically, the raw numbers we’ve got is so far in 2019– so what we do is we look at the Department of Ed’s office of civil rights database. And that includes an exposure of all of the cases that they’re investigating. And then we also look at what resolution agreements they post.

At the end of last year, you had about 3,200 cases in the database. And then we actually just pulled that data in July, and you had about 4,020 or so in the database. So we’re seeing an increase in that database. We haven’t sliced that out, necessarily, by public or private institute. That is an activity you could do.

Also, the reporting from that is not so great. So prior administration, there was basically a summary that was posted by the Department of Education to Congress and sort of reported how that database works in the OCR activities.

Current administration just hasn’t done that report yet. Maybe it won’t do it at all too– not sure where that’ll come in. So it’s just kind of opaque. But at least the raw complaints, I can tell you, are increasing and they’re growing pretty rapidly. And then that case handling rule was overturned, as well.

So you’ll see advocates continue to use, I think the OCR mechanism for enforcement of those complaints. I would say that we have seen some increase of lawsuits under the ADA against education organizations. We have not seen nearly as many as other physical providers, particularly those sort of for-profit providers. But you may see a trend to that, as well.

What is the state of automatic captions specifically with YouTube’s automatic captions? And how Google has worked to improve auto-captions?

LILY BOND: Every speech recognition vendor is always looking to improve the accuracy of their automatic captions. And all of them will improve slightly over time. We actually do an annual study of all of the major speech recognition vendors. We’re about to publish kind of a state of speech recognition showing data on all of these different vendors.

And while there is some improvement, over time, really, automatic captions– there are a lot of reasons why they are still very, very far from creating an equal experience. They still end up being really, at best, up to 90% accurate. And it’s so dependent on the audio quality, on how many speakers there are, if there are accents, the complexity of the video.

And for something like YouTube where you’re not able to train the speech recognition on specific terminology that’s specific to your content, you really don’t see as many of the benefits that can raise the accuracy level. And then there are just some limitations in terms of being able to differentiate between different speakers, having any real punctuation added, sound effects, speaker identification.

There are a lot of limitations to speech recognition that won’t be solved for some time. So our recommendation is generally that if you want to use speech recognition, it may have even gotten better to the point where you are able to spend less time editing it. But we would say that you would still have to edit it to create an equal experience.

What is the scope of the ADA? Does it apply to, for example, a quasi-government entity?

TIM SPRINGER: Ultimately, the real answer is that’s a great question for your attorney. My general experience is that the closer it’s tied to the physical location, the more likely there is to be enforcement. But it depends where you physically are, where a lawsuit would be brought, the size and scope and risk associated with a business, as well. Just how many users does it have? Those are sort of all things that play into it.

So I wouldn’t tell you you are in a high-risk sort of category just looking at where the lawsuits were filed, but I wouldn’t tell you you’re in a low-risk category. As to whether the law applies, that I couldn’t necessarily opine on.

But those would be the factors that most people would stick into it as sort of, where are you at? What’s the industry? Relatively, you’re probably in a lower risk industry. But again, because you have to do with the physical enjoyment of places, that’s where it gets a little muddy. So it’s not a great answer, but an answer, and factors to think about.

 

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What is the requirement for transcripts for videos?

LILY BOND: Captions are required for any time-synchronized video. And transcripts are always recommended as a best practice. Closed captions would be the legal requirement there.

Is there is a time limit to fix your site if you get a notice to sue?

TIM SPRINGER: Again, it varies. It depends. As a matter of regulation and statute, none that I know. So there aren’t any regulatory rulings that speak to that at all. As far is my understanding of the statute, there’s nothing in the law that covers that.

It tends to be in my experience more the negotiation with the counterparty in that, and then whether or not someone really wants to pursue a lawsuit based on the fact that you have a plan in place to fix it, or that you’re in process.

Typically, when we work with organizations, this would come down to kind of how you want to frame your legal defense. So it’s very much a coordination between us says a technical expert and your attorney. But when we broadly work with organizations, one of the things we look at and think about is if we can show that the production experience is accessible, if we can show that there’s a clear route for issues in the production experience that aren’t accessible to get support for those experience an alternative path to having access to that stuff.

And then there’s a clear plan that’s published of how we’re going to address it– just from kind of an overarching litigation strategy perspective, that tends to be a good story.

And we do tend to see clients go back with pretty strong responses on that when they’re responding to counterparties. So there’s no black and white regulatory standard that we’re looking at or sort judging on. It’s more you look at the overall set of circumstances associated with it. And we say, yeah, there may be some issues. But we’re fixing them. We’re fixing them on a concise timeline.

And while we’re fixing those issues, we have a really clear, reasonable path to providing support, such that people can get around those issues. That’s a fairly strong legal position to be in, from our experience.

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Watch the full webinar:

 

This blog post is written for educational and general information purposes only and does not constitute specific legal advice. This blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.