My name is Kris Rivenburgh. I’m an attorney and the author of The ADA Book. I’m also the founder of Accessible.org.
So that I can efficiently provide a transcript and closed captions, I will read from the transcript itself.
On its face, indemnification for digital accessibility makes complete sense. The rationale goes something like this:
“Hey, if I hire you to make my website accessible and I get sued after you complete the work, then you have to indemnify me for my legal costs.”
Basically, as a prospective client, you are saying, I want you to stand behind your work. I need someone to make my website ADA compliant and I want you to have skin in the game if I’m sued for a violation of the ADA (or other law) pertaining to the accessibility of my website.
And now I’m going to tell you why I don’t offer indemnification and why you shouldn’t hire any provider (or vendor) that purports to.
Standard Under the Law
First, there is no clear definition of what ADA compliance is as it pertains to digital assets. So that’s always a vague target as the legal standard under the Americans with Disabilities Act is meaningful access.
What this means is because the law isn’t clear, we can immediately rule out indemnification based on legal compliance. We simply don’t have the fundamental basis for a framework to work under.
WCAG Conformance Standard
Second, if you want to go by conformance with the Web Content Accessibility Guidelines, that’s a better approach, but an accessibility audit and remediation is only going to cover so many pages or screens – usually 10 to 15.
On this note, is your provider performing the remediation (fixing the website) or are you or another third party? Because if it’s anyone other than the accessibility provider, this gets tricky because then the question becomes how can the provider be responsible for the fixes? Unless they engage in multiple rounds of audits, they can’t be.
Also, on the topic of conformance, what if there are issues on the pages or screens that fall outside of the audit? Let’s say you have a 100-page website, no accessibility company will audit all 100 pages – it’s a waste of time and money. What needs to happen is the issues found on the primary page layouts are applied to the rest of the website, but how can the accessibility provider be responsible for these?
And let’s say there is an indemnification clause for WCAG 2.1 AA conformance, what happens when the client inevitably wants to change the website or add new content? Is the indemnification clause invalidated? Does the accessibility provider have to approve the changes?
Moreover, how long does this go on for?
Third bullet point – if there is legal action, at what point does the indemnification begin and end?
Does it cover a specific dollar amount?
Does it cover the full settlement amount?
Does it cover a full defense against a lawsuit?
Does the defense start as soon as a demand letter is received?
If it’s a specific dollar amount, does the client get to run up the bill until that amount is reached? Does the client have full discretion in how the money is used?
If it’s a full settlement, does that include the settlement amount, defense attorney’s fees, and cost of accessibility?
Additionally, what if the claims made have no validity? What if the demand letter consists of only templated claims that aren’t actual accessibility issues? Does the accessibility provider have to indemnify then?
There are other reasons, but ultimately there is too much uncertainty and friction involved for any reputable accessibility provider to offer true indemnification.
It just doesn’t make any sense. As a provider, you’d have to open up a separate indemnification claims office just to process claims.
Read the Fine Print
Now, you may see claims of vendors offering indemnity, but, look at the fine print. If you read through the terms and conditions, you are not getting the guarantee or assurance that you’re really after.
If there is an indemnification clause, it’s very likely extremely limited in scope.
I would be surprised if any indemnification money has ever been paid out – not just in 2022, but ever.
If you’re swayed by the feature-benefit sell of indemnification, all you have to do is look at the fine print to find out you’re not getting that full coverage you were hoping for.
And if a vendor is deceptively marketing to you that you are indemnified and you really aren’t, do you want to business with that vendor?
Because indemnification for website accessibility is so difficult to put into practice, it’s not offered – at least not in the way you were hoping for.
But a trustworthy provider will explain this to you when asked. Because it is a question that occasionally comes up and I can certainly understand why any client wants their accessibility provider to have skin in the game, I made this video so that anyone procuring services will have the necessary background information.
For all of the aforementioned reasons and others, Accessible.org does not offer indemnification with its services.
However, there may be insurance policies that can extend coverage to the accessibility of your website.
If you would like help with an audit or remediation, you can find out more about accessibility services at Accessible.org.
Furthermore, I highly recommend you read The ADA Book. The ADA Book is quick and to the point and helps everyone understand the legal landscape and the different elements in play when making a website or other asset accessible.