September 30, 2022

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Web Design Accessibility Can Aid Enforcement Of Terms – IT and Internet

Enforceability of terms and conditions, privacy policies and
other online agreements available on web, app and media assets is
an increasingly hot legal topic, and one that continues to spur
litigation despite, or perhaps due to, the fact that direction from
courts and the legislature is not specific or actionable.

This, combined with the fact that no agency or other body has
promulgated a set of concrete principles directly addressing
enforceability of terms and conditions, leaves businesses without
certainty as to whether their terms and conditions are enforceable,
until litigated.

As a result, it’s time to look elsewhere for practical and
tangible suggestions around how clients can build content with
enforceable terms.

In short, without website standards, uniform criteria or federal
legislation regulating the enforceability of terms and conditions,
and with little truly actionable legal direction from courts or
other administrative bodies, how can a business make sure its
online terms are enforceable?

One option: Try making the website accessible.

Gaps in Current Legal Framework

The jurisprudence around enforcement of terms and conditions
begins with a focus on the various types of online agreements.

It is now widely accepted that clickwrap agreements are
generally more enforceable than browse-wrap agreements, as the U.S.
Court of Appeals for the Second Circuit stated in 2017 in Meyer v.
Uber Technologies Inc.1

Yet not all online terms and conditions fit squarely into those
two categories, as in, for example the 2015 Berkson v. Gogo LLC
decision in the U.S. District Court for the Eastern District of New
York.2

Indeed, most courts analyze online contracts under a spectrum
framework, with various types of agreements falling between the
clickwrap and browse-wrap extremes, as explained in the Supreme
Court of Maine’s 2022 Sarchi v. Uber Technologies Inc.
decision.3

This led the courts to note, as did the Second Circuit in Meyer,
that, “[t]he reasonableness of notice [and] enforceability of
a web-based agreement is a fact-intensive
inquiry.”4

Courts across the country have developed an enforceability test
to evaluate terms and conditions. That test centers on two factors:
(1) reasonably conspicuous notice; and (2) a user’s
manifestation of assent.

Expanding on those points, courts, like California’s Fourth
District Court of Appeal in 2021’s Sellers v. JustAnswer LLC
decision, have highlighted the following as key elements:

  • The size of the text;

  • The color of the text as compared to the background it appears
    against;

  • The location of the text and, specifically, its proximity to
    any box or button the user must click to continue use of the
    website; d) the obviousness of any associated hyperlink; and

  • Whether other elements on the screen clutter or otherwise
    obscure the textual notice.5

This enforceability test has led to a multitude of decisions
across the country in which courts examine a broad range of font,
color, contrast, notice and design elements to determine whether
T&Cs are enforceable, as in the 2021 Peiran Zheng v. Live
Auctioneers LLC decision in the U.S. District Court for the
Southern District of New York;6 or unenforceable, as in
the recent 2022 Berman v. Freedom Financial Network LLC decision in
the U.S Court of Appeals for the Ninth Circuit.7

While those opinions are generally instructive, courts and the
legislature have not yet answered logical follow-on questions
regarding implementation of the enforceability test.8
Obvious questions remain unanswered: How large should the font be?
What contrast ratios — the text color vs. the background
color — are readable? What makes text, boxes and prompts
obvious and usable?

Fortunately, private organizations like the World Wide Web, tech
giants like Google Inc. and government organizations like 18F have
provided applicable direction in their standards for creating
websites that are accessible for people with disabilities. World
Wide Web Consortium is a group focused on designing and developing
web standards,9 while 18F is a technology and design
consultancy for the U.S. government operating under the General
Services Administration.10

These technical accessibility standards have become increasingly
important in compliance efforts under Title III of the Americans
with Disabilities Act, which prohibits a public accommodation from
discriminating against individuals based on a
disability.11

The U.S. Department of Justice, tasked with enforcement of
Titles II and III of the Americans with Disabilities Act, passed
guidance on March 18 indicating that, even though it has not issued
specific regulations or detailed standards, its “longstanding
interpretation of the general nondiscrimination and effective
communication provisions applies to web
accessibility”12

The guidance seems to indicate that the DOJ’s enforcement
powers apply to websites regardless of the circuit court split
regarding public accommodations’ websites,13 and
even cites to settlement agreements reached with various private
businesses.14

Perhaps most importantly however, the DOJ expressly cites a few
of the accessibility standards listed above and explains that such
standards can provide helpful guidance for ensuring the
accessibility of websites.15

Given that those standards along with other commercially
available guidelines pertaining to accessibility, seem to address
many of the factors courts examine when analyzing enforceability,
it becomes clear that accessibility standards may provide guidance
not just for businesses seeking to comply with the ADA, but also
for businesses seeking to ensure that their online terms and
conditions are enforceable.

Incorporating Accessibility Into Online Terms and Conditions to
Make Them Enforceable

Several industry initiatives offer broad guidance that help
drive the accessibility analysis. First, W3C, via its Web
Accessibility Initiative,16 created the Web Content
Accessibility Guidelines 2.1 — widely regarded as the
international standard for web accessibility17
which directs web designers and operators to follow four principles
and create websites that are: (1) perceivable; (2) operable; (3)
understandable; and (4) robust.

Each of those principles encourages website operators and
designers to implement tools and practices that permit a broad
range of users and visitors to access webpages, regardless of
disabilities or other impairments.

More specifically, the W3C, 18F and Google resources highlight
the following specific suggestions for making websites
accessible:

Font Size and Formatting

Per the WCAG, consider the following font sizing and formatting
directions:

  • Line height, or line spacing, of at least 1.5 times the font
    size;

  • Spacing following paragraphs to at least 2 times the font
    size;

  • Letter spacing, or tracking, to at least 0.12 times the font
    size; and

  • Word spacing to at least 0.16 times the font size.

Contrast Ratio

Higher contrast between text color and the background makes text
easier to read, but W3C provides more detail and direction:

Color is not used as the only visual means of conveying
information, indicating an action, prompting a response, or
distinguishing a visual element. … The visual presentation of
text and images of text should have a contrast ratio of at least
4.5:1, except for the following:

  • Large Text: Large-scale text and images of large-scale text
    have a contrast ratio of at least 3:1

  • Incidental: Text or images of text that are part of an inactive
    user interface component, that are pure decoration, that are not
    visible to anyone, or that are part of a picture that contains
    significant other visual content, have no contrast
    requirement.

  • Logotypes: Text that is part of a logo or brand name has no
    contrast requirement.

Design Organization/Sequencing

Appropriate layout of a site makes the information more
accessible and navigable, according to 18F’s
“Headings” page under its Accessibility
Guide.18 Google’s Material Design Accessibility
Guidelines19 furthers this thinking by focusing on the
hierarchy of buttons, images and lines of text stating that,

Every added button, image, and line of text increases the
complexity of a UI. You can simplify how your UI is understood by
using:

  • Clearly visible elements

  • Sufficient contrast and size

  • A clear hierarchy of importance

  • Key information that is discernable at a glance

To convey an item’s relative level of importance:

  • Place important actions at the top or bottom of the screen
    (reachable with shortcuts)

  • Place related items of a similar hierarchy next to each
    other.

Touchpoints

Accessibility goes beyond the text itself and expands to the
ease with which a user can access the information through a click
or tap. The area in which a user can click that is responsive to
the embedded link makes the information behind that click more
easily accessible to the website user. As the Google guidelines
detail,

Touch targets are the parts of the screen that respond to user
input. They extend beyond the visual bounds of an element. For
example, an icon may appear to be 24 x 24 dp, but the padding
surrounding it comprises the full 48 x 48 dp touch target. For most
platforms, consider making touch targets at least 48 x 48 dp. A
touch target of this size results in a physical size of about 9mm,
regardless of screen size. The recommended target size for
touchscreen elements is 7-10mm. It may be appropriate to use larger
touch targets to accommodate a larger spectrum of users.

Device Type

Websites need to be accessible not only on computers, but also
on a wide range of other devices. W3C accounts for that and notes
that information must be presented in a “responsive web
page,” meaning that the site must reformat according to the
type of device on which it is being viewed — e.g., phones,
tablets, etc.

How Accessibility Standards Help Legal Precedent
Gaps

Commercially available accessibility standards can help provide
critical implementation details missing from the enforceability
precedent.20

For example, while the precedent makes clear that online terms
and conditions are unlikely to be enforced if they are displayed in
tiny gray font on a gray background, the accessibility standards
take an additional step and provide that if the font was larger and
on a background contrasting at a 4.5:1 ratio — as noted in
the WCAG —the relevant text is likely accessible. By
implementing those accessibility standards, a court applying the
enforceability test could find that the terms and conditions,
available or accessible under the same webpage, were reasonably
conspicuous.

Similarly, relevant precedent indicates hyperlinked text
presented in blue and underlined, generally supports
enforceability. Accessibility guidelines again provide additional
guidance, indicating that if the web design obscured relevant text
or made buttons impossible to click on, the hyperlinked
presentation may still be insufficient for the website to be
considered accessible.

Courts analyzing the terms and conditions available on the same
website might therefore find that no “manifestation of
assent” existed when applying the enforceability test to a
user visiting the site.

Application of accessible design to broader life situations is
not new, and accessibility solutions have long informed the lives
of many individuals.

Consider sidewalk cutouts on corners: While initially designed
for individuals in wheelchairs, the dip benefits parents walking
with strollers, cyclists, skateboarders, delivery people and
more.

As a result, for an attorney looking to provide tangible,
actionable and, by many indications, enforceable advice to clients,
technical accessibility standards, in addition to existing
precedent, could serve as a reasonably suitable proxy for formal
enforceability guidelines.

Footnotes

1. Meyer v. Uber Techs., Inc., 868 F.3d 66, 75 (2d Cir.
2017).

2. Berkson v. Gogo LLC, 97 F. Supp. 3d 359, 394–95
(E.D.N.Y. 2015).

3. Sarchi v. Uber Techs., Inc., 268 A.3d 258, 268 (2022
ME 8).

4. Meyer, 868 F.3d at 76.

5. Sellers v. JustAnswer LLC, 73 Cal. App. 5th 444, 473
(2021), reh’g denied (Jan. 18, 2022), review denied (Apr. 13,
2022).

6. B.D. v. Blizzard Ent., Inc., 292 Cal. Rptr. 3d 47, 65
(2022) (finding T&Cs enforceable based, in part, on the color
contrast of the relevant terms against the background on which they
appeared); Peiran Zheng v. Live Auctioneers LLC, No. 20-CV-9744
(JGK), 2021 WL 2043562, at *5 (S.D.N.Y. May 21, 2021) (holding
T&Cs enforceable, in part, because of the placement and
sequence of the notices linking to the T&Cs on the webpage at
issue).

7. Berman v. Freedom Fin. Network, LLC, 30 F.4th 849, 856
(9th Cir. 2022) (finding that the website in question did not meet
either element of the enforceability test after analyzing, among
other things, font size and overall website design); Sarchi v. Uber
Techs., Inc., 268 A.3d 258, 270 (ME 2022) (finding, in part, that
hyperlinked elements of the webpage were insufficient to constitute
conspicuous notice given the lack of underlining and muted grey
coloring).

8. This is not to say that there have not been some
efforts. Two pieces of legislation are currently pending in
Congress that, if passed, could have potentially significant
impacts on the enforceability landscape. The Terms-of-service
Labeling, Design, and Readability Act, S.3501, 117th Cong. (2022),
would set forth an affirmative obligation for most websites to
publish terms of service and would designate the Federal Trade
Commission as the enforcement authority. That could potentially
give the agency broad powers in the enforceability space. The
E-Sign Modernization Act of 2022, S.3715, 117th Cong. (2022),
amends the Electronic Signatures in Global and National Commerce
Act (15 U.S.C. 7001 et seq.) and repeals the requirement that
consumers demonstrate their ability to access information
electronically in order to consent to the use of electronic
records. This repeal makes it easier for agreements to be
electronically executed and relates directly to the
“manifestation of assent” element of the enforceability
test.

9. More information on W3C is available at https://www.w3.org/Consortium/.

10. More information on 18F is available at https://18f.gsa.gov/about/.

11. Public accommodations generally refer to businesses
including private entities that are open, or otherwise provide
goods or services, to the public. 42 U.S.C.A. §
12181(7).

12. The DOJ’s March 18, 2022 press release titled
“Justice Department Issues Web Accessibility Guidance Under
the Americans with Disabilities Act,” is available at https://www.justice.gov/opa/pr/justice-department-issues-web-accessibility-guidance-under-americans-disabilities-act.

13. American with Disabilities Act Applies to Websites
Connected to Physical Places of Public Accommodation, 40 No. 9 Cal.
Tort Rep. NL 3 (October 2019) “The federal circuit courts are
split three ways on whether websites are places of public
accommodation within the meaning of Title III.”

14. The full text of the DOJ’s most recent guidance
on accessibility, including citations to “Title III Sample
Cases” is available at https://beta.ada.gov/resources/web-guidance/.

15. The most prominent guidelines cited in the DOJ
guidance are the Web Content Accessibility Guidelines and Section
508 Standards. These guidelines are not addressed in this article,
as they are designed specifically for the federal government. The
full text of the standards and guidelines is available at https://www.access-board.gov/ict/.

16. More information on the Web Accessibility Initiative
is available at https://www.w3.org/WAI/about/.

17. The WCAG are available at https://www.w3.org/TR/WCAG21/.

18. 18F’s Accessibility Guide is available at https://accessibility.18f.gov/.

19.Google’s Material Design Accessibility Guidelines
are available at https://material.io/design/usability/accessibility.html.

20. It should be noted that not all accessibility
standards are applicable to the enforceability test. Many of the
provisions in the accessibility standards address concepts and
tools that are not prominently featured in the enforceability
precedent, such as screenreaders (tools to help visually impaired
individuals navigate webpages), customization utilities (tools
permitting users to increase or decrease font size or page layout)
and alt. text (code that aids in creating a description of the
visual elements on a webpage). Following those standards may still
be important from an ADA compliance standpoint, even if they are
not as relevant to the enforceability analysis.

Originally published by Law360.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.