2024-31765. accessiBe; Analysis of Proposed Consent Order To Aid Public Comment

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Federal Trade Commission

1. [File No. 222 3156]

AGENCY:

Federal Trade Commission.

( print page 648)

ACTION:

Proposed consent agreement; request for comment.

SUMMARY:

The consent agreement in this matter settles alleged violations of Federal law prohibiting unfair or deceptive acts or practices. The attached Analysis of Proposed Consent Order to Aid Public Comment describes both the allegations in the complaint and the terms of the consent order—embodied in the consent agreement—that would settle these allegations.

DATES:

Comments must be received on or before February 5, 2025.

ADDRESSES:

Interested parties may file comments online or on paper by following the instructions in the Request for Comment part of the SUPPLEMENTARY INFORMATION section below. Please write “accessiBe; File No. 222 3156” on your comment and file your comment online at https://www.regulations.gov by following the instructions on the web-based form. If you prefer to file your comment on paper, please mail your comment to: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Mail Stop H-144 (Annex W), Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT:

Kristin Williams (202-326-2619), Division of Advertising Practices, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 20580.

SUPPLEMENTARY INFORMATION:

Pursuant to section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule § 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of 30 days. The following Analysis to Aid Public Comment describes the terms of the consent agreement and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained at https://www.ftc.gov/​news-events/​commission-actions.

You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before February 5, 2025. Write “accessiBe; File No. 222 3156” on your comment. Your comment—including your name and your State—will be placed on the public record of this proceeding, including, to the extent practicable, on the https://www.regulations.gov website.

Because of heightened security screening, postal mail addressed to the Commission will be subject to delay. We strongly encourage you to submit your comments online through the https://www.regulations.gov website. If you prefer to file your comment on paper, write “accessiBe; File No. 222 3156” on your comment and on the envelope, and send it via overnight service to: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Mail Stop H-144 (Annex W), Washington, DC 20580.

Because your comment will be placed on the publicly accessible website at https://www.regulations.gov, you are solely responsible for making sure your comment does not include any sensitive or confidential information. In particular, your comment should not include sensitive personal information, such as your or anyone else's Social Security number; date of birth; driver's license number or other State identification number, or foreign country equivalent; passport number; financial account number; or credit or debit card number. You are also solely responsible for making sure your comment does not include sensitive health information, such as medical records or other individually identifiable health information. In addition, your comment should not include any “trade secret or any commercial or financial information which . . . is privileged or confidential”—as provided by section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule § 4.10(a)(2), 16 CFR 4.10(a)(2)—including competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.

Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule § 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request and must identify the specific portions of the comment to be withheld from the public record. See FTC Rule § 4.9(c). Your comment will be kept confidential only if the General Counsel grants your request in accordance with the law and the public interest. Once your comment has been posted on the https://www.regulations.gov website—as legally required by FTC Rule § 4.9(b)—we cannot redact or remove your comment from that website, unless you submit a confidentiality request that meets the requirements for such treatment under FTC Rule § 4.9(c), and the General Counsel grants that request.

Visit the FTC website at https://www.ftc.gov to read this document and the news release describing the proposed settlement. The FTC Act and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding, as appropriate. The Commission will consider all timely and responsive public comments it receives on or before February 5, 2025. For information on the Commission's privacy policy, including routine uses permitted by the Privacy Act, see https://www.ftc.gov/​site-information/​privacy-policy.

Analysis of Proposed Consent Order To Aid Public Comment

The Federal Trade Commission (“Commission”) has accepted, subject to final approval, an agreement containing a consent order from accessiBe Inc. and accessiBe Ltd. (collectively, “accessiBe”).

The proposed consent order (“proposed order”) has been placed on the public record for 30 days for receipt of comments by interested persons. Comments received during this period will become part of the public record. After 30 days, the Commission will again review the agreement and the comments received and will decide whether it should withdraw from the agreement and take appropriate action or make final the agreement's proposed order.

This matter involves accessiBe's marketing and sale of a web accessibility software plug in called accessWidget. accessiBe represented that accessWidget could make any website compliant with the Web Content Accessibility Guidelines (“WCAG”), a comprehensive set of technical criteria used to assess website accessibility. accessiBe advertised these claims on its website and social media, as well as in articles that were formatted as impartial and objective reviews on third-party websites. accessiBe also failed to disclose its material connections with the publishers of those third-party articles.

The proposed complaint alleges that accessWidget did not make all websites WCAG compliant, and that the company's claims were false, misleading, or unsubstantiated. The proposed complaint also alleges that formatting the third-party articles and reviews as independent opinions by impartial authors and publishers was false and misleading, and that accessiBe's failure to disclose its material connections with the publishers of those articles was deceptive. ( print page 649)

The proposed order contains provisions designed to prevent accessiBe from engaging in these and similar acts and practices in the future. Provision I prohibits accessiBe from representing that its automated products, including accessWidget's artificial intelligence and other automated technology, can make any website WCAG compliant, or can ensure continued compliance with WCAG over time as web content changes, unless the company has competent and reliable evidence to support the representations. Provision II prohibits accessiBe from misrepresenting any fact material to consumers about any of the company's products or services, such as the value or total cost; any material restrictions, limitations, or conditions; or any material aspect of its performance, features, benefits, efficacy, nature, or central characteristics. Provision III prohibits accessiBe from misrepresenting that statements made in third-party reviews, articles, or blog posts about its automated products, including accessWidget's artificial intelligence and other automated technology, are independent opinions by impartial authors; that an endorser is an independent or ordinary user of the automated product; or that the endorser is an independent organization or is providing objective information.

Provision IV requires accessiBe to disclose clearly and conspicuously, and in close proximity to representations about its automated products, including accessWidget's artificial intelligence and other automated technology, any unexpected material connection that an endorser has to accessiBe, to the product or service, or to affiliated individuals or entities. Provision V requires accessiBe to disclose, in connection with representations that accessWidget or the company's other artificial intelligence or automated products correct accessibility barriers on a website, that such products or services will not correct barriers on third-party web domains or subdomains that may be part of the overall user experience, unless those domains also use the product. Such disclosure must be made clearly and conspicuously, and prior to the consumer incurring any financial obligation.

Provision VI requires accessiBe to pay the Commission $1,000,000 in monetary relief. Provision VII describes procedures and legal rights related to that payment. Provision VIII requires accessiBe to provide sufficient customer information to enable the Commission to efficiently administer consumer redress. Provisions IX through XIII are reporting and compliance provisions.

Provision IX mandates that accessiBe acknowledge receipt of the order, distribute the order to principals, officers, and certain employees and agents, and obtain signed acknowledgments from them. Provision X requires accessiBe to submit compliance reports to the Commission one year after the order's issuance and submit notifications when certain events occur. Under Provision XI, accessiBe must create certain records for 10 years and retain them for five years. Provision XII requires accessiBe to provide information or documents necessary for the Commission to monitor compliance with the order during the period of the order's effective dates. Finally, Provision XIII provides the order's effective dates, including that, with exceptions, the order will terminate in 20 years.

The purpose of this analysis is to facilitate public comment on the proposed order. It is not intended to constitute an official interpretation of the complaint or proposed order, or to modify the proposed order's terms in any way.

By direction of the Commission.

April J. Tabor,

Secretary.

Concurring Statement of Commissioner Andrew N. Ferguson, Joined by Commissioner Melissa Holyoak

Today we vote to approve an administrative complaint and proposed consent order with accessiBe, which advertised its accessWidget as “the #1 fully automated ADA [Americans with Disabilities Act] and WCAG [Web Content Accessibility Guidelines] compliance solution,” “always ensuring compliance by rescanning and re-analyzing your website every 24 hours to remediate new content, widgets, pages, and anything else you may add.” The complaint alleges that accessiBe's automated solution fell far short of its promise and failed to correct many website accessibility issues.^[1] The complaint also accuses accessiBe of misrepresenting that various reviews and testimonials of accessWidget were independent and impartial when they were in fact bought and paid for by accessiBe.^[2]

I write separately to clarify my vote in favor of the count accusing accessiBe of misrepresenting its product's performance. Each subscription to accessWidget covers only one domain, but websites sometimes depend on subdomains or third-party domains for critical functionality, like making a reservation or processing a payment.^[3] The complaint alleges that “[accessiBe] also fail[ed] to disclose, or disclose adequately, that accessWidget does not remediate website content hosted on third-party web domains or subdomains (unless the third party or subdomains also happen to use accessWidget).” ^[4] The consent order requires that accessiBe disclose this limitation in the future. My vote should not be taken as endorsing the position that the ADA, or the WCAG, require a website operator to ensure that some or all of the third-party domains or subdomains with which it integrates are accessible. I take no position on that question, which involves the interpretation of a complex law that Congress has tasked other agencies with interpreting and enforcing. I concur in the deception count because the remaining allegations involving misrepresentations of the product's ability to bring the user's own domain into compliance are sufficient to state a claim of deception against accessiBe. Subject to that clarification, I concur in the filing of this complaint and settlement.

Footnotes

1.  Complaint ¶¶ 77-90.

2.   Id. ¶¶ 52-76, 91-96.

3.  See id. ¶ 85.

4.   Id. ¶ 86.