FACIL’iti is a French accessibility overlay company. The company sued two accessibility leaders who participated in a conversation about accessibility overlays alleging defamation. On the side of the defendants, many describe this as a Strategic Lawsuit Against Public Participation (SLAPP).
“In French the equivalent of a SLAPP suit is ‘poursuites bâillons’ (literally ‘gagging pursuits’). Strategic Prosecutions Altering the Public Debate is a detailed report (in French) on the dangers of and potential reforms for this phenomenon in France,” writes Lainey Feingold in an article about the French Overlay Company lawsuit.
Unfortunately, the accessibility advocates lost the lawsuit. However, Koena has a fundraiser (in French) to help these advocates pay 26,256 euros to FACIL’iti. This is the American dollar equivalent of $28,700.
In this episode of A11y Insights, Ken Nakata from Converge Accessibility and Equal Entry CEO and founder Thomas Logan talk about the lawsuit.
What Is the French Accessibility Overlay Company Lawsuit About?
Thomas Logan: Hello, Ken. It’s great to be with you for another A11yInsights episode. I saw on Twitter X and from Lainey Feingold’s feed this week, some information about a French overlay company that sued an accessibility advocate and won in their court system. What do you know about that?
Ken Nakata: Here’s a summary of what I know. There’s a company called FACIL’iti in France, and they make an overlay that makes it easier to change the appearance, font size, color contrast, and things like that on your screen. And they were on X, and they made a few tweets.
And this company, Koena, which is a small woman-owned web design firm that also focuses on accessibility, responded with two tweets.
As far as I know, what got them in trouble were just these two tweets. One tweet said, “Let’s stop the misleading messages. No, FACIL’iti does not make its site more accessible to people with disabilities but only modifies the appearance of pages. And the solution does not meet the needs of internet users.”
And then in another tweet, they said that, FACIL’iti doesn’t make forms or images accessible, and that there are many other features it doesn’t improve the accessibility of, and that are commonly encountered by people with disabilities.
It doesn’t ensure compliance with the RGAA, which is the digital accessibility law in France, which incorporates WCAG. They said it is not a miracle solution for digital accessibility. So just those two tweets got them in trouble.
Thomas Logan: And that’s horrible because as I’ve listened to what they said, that’s what I believe, there is no miracle solution for accessibility. I echo their concern, the fact that people try to make it seem like that is misleading.
And if a judge or someone understood the ecosystem, they might have a different perspective when they judge it.
What Was the French Accessibility Overlay Company Lawsuit Ruling?
Ken Nakata: I think that’s right. As a result of those two tweets, the company sued them, and they ended up having to pay over 26,000 euros, which came out to about U.S. $28,700. Koena was also ordered to remove the two offending tweets.
Since then, Koena has started a fundraising campaign to pay the fine and also to appeal the judgment because they think that it’s wrong. I have to say based on those two tweets, I’m a bit surprised the judge decided against Koena because it doesn’t seem like they were saying that they’re committing any kind of fraud or deceiving their customers. It just sounds like it’s not a complete solution and that it doesn’t make websites completely accessible.
Thomas Logan: I think for me it’s just, well, I only know the American legal system and I barely know that. I think it’s kind of confusing to read that judgment or read that understanding. Did you take any time to try to understand the issue?
Because as we talk about on this podcast, there are a lot of details that go into how this can all work. And I think if you make too quick of a decision, you’re just not understanding the problem.
Ken Nakata: I think that’s right. The other thing that strikes me is that in the United States, where people perceive us as being the most litigious culture in the world, had this case been brought in the United States, I’m not sure they would have won.
Granted, I’m not a torts lawyer, so I don’t know exactly the law of defamation in this country. Certainly no expert at it, but it seems as though just looking at this one ruling, it’s a lot easier to get sued in France than it is to get sued in the United States for something like this, and that’s not something I would have expected.
And I think that it would be interesting when we compare to other cases in the United States that involve the same sort of issues.
How Does This Relate to the Case of AudioEye v. Roselli?
Thomas Logan: Ken, I was thinking about AudioEye versus Adrian Roselli and thinking that might have a connection to this case. What do you think?
Ken Nakata: Absolutely. It’s interesting when you compare the facts and those two cases against each other.
On the one hand, you’ve got the Koena case in France, where the entire lawsuit comes down to just those two tweets that I summarized at the beginning of this. In the AudioEye case, by contrast, the complaint goes much further and describes how Adrian Roselli was part of the community of people that was voicing concerns about overlays in general.
It wasn’t all geared towards AudioEye. Very little of it was. It was mostly geared towards other overlay companies, but AudioEye was caught up in the same swell of opinion. And so it was based on that, as well as some specific tweets, as far as I can recall. But it was about behavior that was much more drawn out over a much longer period than simply two tweets.
And in France, apparently, if you just make two tweets that somebody disagrees with, then you can get sued for a lot of money very quickly.
Thomas Logan: Yeah, and you have to pay it out. That’s incredible to me. I can’t imagine paying $1 for what I wrote on Twitter. So, definitely not $28,000.
Ken Nakata: Changing subjects, Thomas, what do you think about FACIL’iti’s reputation within the accessibility community?
Can Accessibility Overlays Fit into Accessibility?
Thomas Logan: Well, I think it’s still early to come to make an impression of a company. I think that I do see there are more and more companies operating in the accessible technology space. I think from what I’m reading about FACIL’iti, it sounds like an overlay company, which we’ve had historically a few other bad actors acting in this space where people make claims.
Saying that they will make your whole website accessible for everyone just by installing one piece of code and anyone that works in this space, for real knows that that’s not true. So, my understanding is that they, unfortunately, are one of the companies that were making that type of claim.
So, Ken, you’ve worked a lot on these issues at IAAP. Why do you think people are so hot-headed and opinionated on this issue specifically?
Ken Nakata: That’s a great question, Thomas. It comes down to the fact that there are two different ideas about accessibility, as far as I can tell. For the overlay companies, they do believe, and I agree with them, that they are improving accessibility.
On the one hand, they look to a different group of users. When I was a keynote speaker for the digital accessibility legal summit, I think it was a year ago, maybe two years ago, the person who followed me was Yuval Wagner from Israel, where some of these overlay companies are based. And he said, when someone asked him that same question, “What’s the deal with overlays?”
He said that over there, they don’t market their overlays as accessibility solutions or compliance solutions. They focus on the older generation. And here in the United States, they focus on accessibility compliance because we have so many accessibility lawsuits. And when he said that, all of a sudden, it made sense.
They are improving the lives of the older generation that becomes disabled and hasn’t used a screen reader their entire lives. They have no idea how to use a screen magnifier or tools like that. And if you can just click on a button that shows up on a web page, and then select to have your font enlarged, or to improve the color contrast, for that group of users, it’s a great solution.
The problem is that I think that in the United States and elsewhere where we’re dealing with compliance, we’re talking about an entirely different group of users. We’re talking about people who are younger professionals who have spent their entire lives using very sophisticated assistive technology that may be blocked by overlays or that when overlays just get in the way, and they have a legitimate point there too.
So, one of the quotes I think that we came across when we were looking at FACIL’iti’s response was that their CEO said, “Well, I don’t care about compliance. I really care about improving the lives for users.”
When he said that, I think that he meant that. And I think that it’s true that for a certain group of users, they are making the world a better place. But it’s not making the world necessarily a better place for all users with disabilities.
Thomas Logan: I love that point. I think 100% hold that space too, that there has to be some features in the code that they’ve worked on that benefit people and just to have this blanket reaction to an overlay as being immediately bad. I don’t have that, you don’t have that. It’s like, yeah, I want to see what the product does.
Does it make it easier? And to your point and to what they’re explaining their target market, it’s like, that’s always been a thing for accessibility. A lot of people don’t know it’s available or that it could be used by them. So, having it more visible on a website and being able to see it and try out the features and then benefit from them makes sense to me. So a lot of it, I agree with in that perspective.
Ken Nakata: Okay. Now I’ll ask you another question, Thomas. As technology evolves, do you think that there’s a role for AI to play in the improvement of overlays?
Thomas Logan: Yes, obviously, I think artificial intelligence (AI) is now, that’s what we all should be studying, thinking about, learning about. It’s going to affect all of the next generation of technology.
So, I think it has a part. And I like to try to think a little bit farther ahead. I appreciated talking with Joe Dolson about AI. I was thinking about alt text for images. One of the things that has always been strange in my career was thinking about how to summarize an image from, for example, my singular perspective of a piece of art.
I have to summarize that in 150 characters. That’s something with AI where I think different people have different preferences of what they would like to hear as a description of the image. It makes more sense to me now in the future to be like, here’s all the information about the image. And what does someone want to know about the image?
They can query that themselves and have it customized for them. So, that conversation with Joe was interesting. That’s something I’ve been thinking about for AI, where it makes sense to me that it’s a way that it could be better for accessibility. What about you, Ken?
Ken Nakata: Yeah, I think that’s a great use case for AI and accessibility. As I think about the overlays in particular, because overlays didn’t come to us with a perfect solution out of the gate, it’s easy to criticize them. But over time, I think that all of us in the accessibility community are going to ultimately be relying upon AI, whether we like it or not.
Your example of a customizable alt description to go with an image based upon the user’s preference, I think it goes to a level of accessibility that’s so far beyond our current thinking because we don’t think about mutable alt text based upon user preference. Eventually, once AI becomes more mainstream, those kinds of solutions are going to become the new norm.
And what we’re currently doing is really kind of antiquated. But if we don’t allow the development of technologies like overlays and allow them to experiment with newer technologies like AI, we’re never going to get there.
Thomas Logan: Ken, you won me over with “mutable alt text” as a term, but I agree. It has to be serious and to make progress, it has to be worked on sort of in these ways. Even though maybe we both have the frustrations of how the standards bodies work, I also do understand how important it is to get things defined and make it possible for people to implement successfully.
Ken Nakata: What do you think? Comment below.
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