With 2024 soon wrapping up, businesses of all shapes and sizes should be mindful to add website privacy and disability compliance to their list of New Years’ resolutions. In recent developments in California, a trend has emerged of consumers filing class action lawsuits against businesses for violations of California disability and privacy laws on their websites. This novel threat serves as a reminder to business owners to remain up to date with the latest compliance software and to stay vigilant in preventing the risk of litigation.
Lawsuits targeting businesses engaged in e-commerce have spiked significantly in the past few years. In 2023, 4,605 accessibility lawsuits were filed nationwide, representing nearly 42% increase compared to 2022, a trend that persisted in 2024. These lawsuits, typically filed under Title III of the Americans with Disabilities Act (“ADA”) and the California Unruh Civil Rights Act, allege that consumer-facing websites constitute “public accommodations” within the definition of Title III of the ADA, and target businesses whose website(s) discriminate against persons with disabilities allegedly failing to provide sufficient accessibility components.
A similar trend has emerged with plaintiffs filing lawsuits against businesses for violations of the California Invasion of Privacy Act. These lawsuits claim that the software installed on business websites acts as an illegal “pen register,” which is a device or a process that record or decode dialing, routing, addressing, signaling information. Plaintiffs in these suits typically claim that these businesses’ websites deploy pen register scripts which track and monitor consumers’ online activity across multiple browsing sessions, and wrongfully collect, store, or aggregate users’ personally identifiable information.
Even meritless lawsuits can prove to be incredibly costly and burdensome for businesses of all sizes and in all industries. To mitigate or avoid the risk of litigation, businessowners can take certain measures to ensure their websites are ADA compliant, accessible, AND in line with California privacy laws:
- Subscribe and install an ADA-compliance software program on the company’s website which provides accessibility components for individuals with audible and visual impairments and conduct regular audits of the website to identify any accessibility-compliance gaps;
- Add a cookie opt-out notification banner to the company’s homepage with options to (1) accept all cookies; (2) decline all cookies, or (3) allow the user to manage cookie preferences, linking to a separate page to allow the user to select the types of cookies to which they consent, and;
- Identify and audit any tracking scripts installed on a business’s website to assess what type of information those scripts are collecting and to ensure no personally identifiable information is collected.
This list is just an example of some of the steps businessowners can take to ensure their websites are legally compliant and to help avoid the risk of litigation. Businessowners should retain counsel to fully assess their risk and exposure to litigation and to help tailor each business’s website to ensure full compliance.