[NFBF-L] FW: [blindLaw] New Low in the Accessibility "Industry:" Overlay Company Sues Globally-Recognized Accessibility Expert - Law Office of Lainey Feingold - July 11, 2023

[Camille Tate]

Hi All: 

I found this post from our blind lawyers division of particular interest. We
had a discussion on web accessibility at our Legislative Committee meeting
last month. I was less interested in who the person is that is being sued
over website overlays, than the content of the lawsuit filed against him. We
must not give up, even in the face of this disastrous legal filing, in our
efforts to make website and software applications accessible to everyone who
is blind or print disabled. It brings to mind a banquet address given by Dr.
Jernigan in the 1970s  titled "That's How It is at the Top of the Stairs",.
Or even "The Day After Civil Rights". Go read those banquet addresses at
nfb.org/banquet-speeches if you are unfamiliar with their content. 

 Sincerely, 
Camille Tate 
2nd Vice President, National Federation of the Blind of Florida 
President, Melbourne Space Coast Chapter, National Federation of the Blind
of Florida 
Phone: 321 372 4899 

-----Original Message-----
From: BlindLaw <blindlaw-bounces at nfbnet.org> On Behalf Of Nightingale, Noel
via BlindLaw
Sent: Thursday, August 3, 2023 11:02 AM
To: blindlaw at nfbnet.org
Cc: Nightingale, Noel <Noel.Nightingale at ed.gov>
Subject: [blindLaw] New Low in the Accessibility “Industry:” Overlay Company
Sues Globally-Recognized Accessibility Expert - Law Office of Lainey
Feingold - July 11, 2023


https://www.lflegal.com/2023/07/adrian-roselli-slapp-lawsuit/
New Low in the Accessibility “Industry:” Overlay Company Sues
Globally-Recognized Accessibility Expert Law Office of Lainey Feingold July
11, 2023

This is an article about a lawsuit filed against a digital accessibility
advocate named Adrian Roselli.  Adrian has been outspoken against a type of
software called an overlay. This type of overlay promises to make websites
accessible for disabled people with just one line of code. Lainey has
criticized this software too. Adrian was sued by AudioEye, a company that
sells overlays.  It is Lainey’s opinion that this lawsuit is a SLAPP suit.
Those initials stand for “Strategic Lawsuit Against Public Participation.”
Adrian has been part of an urgent global dialogue about harms caused by
overlays. And about their failure to meet the promise of website
accessibility. Lainey urges AudioEye and its lawyers at a big global law
firm called Akin to drop this lawsuit.

This is an article about a lawsuit filed by AudioEye, a multi-million dollar
accessibility company, against Adrian Roselli, a long-time leader in the
global digital accessibility community. Adrian has been a vocal critic, as
have I, against one-line of code software that claims to make websites
accessible.

AudioEye sells (licenses) an overlay. The company has sued Adrian to stop
him from expressing his opinions about the Audio Eye overlay product.

It is an opinion shared and documented by many.

Adrian and I are two of 785 people from around the world who, as of today,
have signed the Overlay Statement found in the Overlay Factsheet. Please
read the Fact Sheet if you are not familiar with this civil rights issue.

I believe AudioEye has filed a SLAPP suit – what’s that?
In my opinion this lawsuit is a classic example of a type of lawsuit known
as a SLAPP suit. The abbreviation stands for “Strategic Lawsuit Against
Public Participation.” It is a type of lawsuit that targets activists in a
number of fields around the globe. See, eg. SLAPPs in Latin America:
Strategic lawsuits against public participation in the context of business
and human rights.

Another article is SLAPPed but not silenced: Defending human rights in the
face of legal risks. This resource contains a global database of “cases that
bear the hallmarks of SLAPPs” around the world.”

Adrian has been a leader in a global effort to educate website owners about
the limitations and harms of overlays to disabled people. And a global
leader in sharing accessibility information generally. The image at the top
of this post is of Adrian leading an accessibility workshop in Serbia.
Elsewhere in this article is an image of Adrian speaking at an accessibility
event in Hong Kong.

Instead of embracing Adrian Roselli’s expertise to better its product, Audio
Eye, in my opinion, has strategically singled out a top leader in this space
for his participation in this urgent conversation.

The sound of the SLAPP abbreviation is appropriate. A SLAPP suit is a slap
in the face of the person being sued for participating in a public issue.
And it is a threatened slap in the face for everyone else participating
publicly in that issue.

Things that do not explain why I’m publicizing this lawsuit Here are some
disclosures:

The lawsuit against Adrian mentions me in two places. Paragraph 27 of the
complaint says:
Upon information and belief, this article served as the basis for false,
tortious statements made on the website of Lainey Feingold, a disability
rights lawyer in California.

A “tort” is a wrongful act or an infringement of a right leading to civil
legal liability. In this paragraph AudioEye is saying that an article I
wrote about an accessibility settlement with ADP (in which I praise the
company and the blind consumers for using Structured Negotiation to resolve
the claims after the lawsuit was filed), infringes someone’s rights,
presumably AudioEye’s.

It also accuses me of making false statements on this website.

The second reference to me in the lawsuit against Adrian is in Paragraph 37.
It is also about my ADP article, in which I link to and quote from the
settlement reached between software giant ADP and blind people who couldn’t
use certain ADP workplace software. The complaint states that “Contrary to
Roselli’s statements (and similar statements by Lainey Feingold), the ADP
Settlement does not ban ADP TotalSource, Inc. (“ADP”) from using AudioEye.”

But these insults and veiled threats against my writing (and against me) are
not the reason I am writing this article.

Adrian is a friend of mine, someone I met and connected with through the
digital accessibility community. It is a connection strengthened by
attending, speaking at, and sponsoring the same conferences, concerned with
the same issues. I put the word accessibility “industry” in quotes in the
title of this article because while accessibility has indeed become an
industry, it has long been and still is a community. A community that both
Adrian and I are part of.
But our friendship is not why I’m publicizing this lawsuit.

Adrian inspired me to write one of the most popular articles on this website
— My 2022 piece titled Hitchhiker’s Guide to Global Accessibility Awareness
Day. You can read about Adrian’s role in the first paragraph.
But that’s not why I’m posting this article either.

Why I AM writing this article
Digital accessibility is a civil right. It is the bridge that connects
people with disabilities to the technology and content of the digital world.
Without accessibility disabled people are excluded. With accessibility the
promise of disability inclusion is made possible.

This lawsuit against Adrian Roselli impacts every person who cares about
including disabled people in the digital world. It impacts all of us who
speak, write, and advocate for digital accessibility that is fair,
equitable, and ethical.

The lawsuit has what is known as a “chilling effect”. I have personally
experienced it, and I know others who have too. Who will be next? What type
of conversation is off limits?

AudioEye is not the only company selling an overlay product that has filed
this type of lawsuit against an accessibility advocate. My 2021 article
Legal Update: Accessibility Overlay Edition, has a section titled French
Overlay Company Sues Advocates for Their Role in the Global Overlay
Conversation.

In it I talk about two lawsuits filed by a French company called FACIL’iti
that sued two French advocates in the French version of a SLAPP suit called
poursuites bâillons” (literally “gagging pursuits”). Those cases continue.

The global effort to “gag” respected advocates must be stopped.

This AudioEye lawsuit that seeks to silence a well respected accessibility
advocate also impacts potential customers of overlay companies who deserve
accurate information about the product they are considering.

It is my belief that the vast majority of organizations (public, private,
and non-profit sector) who are buying overlay products want to do what’s
best for their customers with disabilities.  Many overlay companies are
well-funded by venture money.  A lot of that money is poured into
advertising the products.  Potential buyers deserve information from people
like Adrian Roselli.

Most significantly, this type of lawsuit hurts people with disabilities.
People harmed by overlay products that can create barriers for some disabled
people while failing to deliver accessibility as promised for others. People
directly impacted when organizations chose a quick fix short-cut instead of
baking disability inclusion into their technologies and content.

It is for these reasons that I’m publicizing this case.

I urge AudioEye, whose business does more than license overlay software, to
drop this lawsuit. The AudioEye Board of Directors includes Tony Coelho, a
primary author and sponsor of the Americans with Disabilities Act (ADA) and
a longtime champion of people with disabilities. I urge the Board to
reconsider this lawsuit strategy.

AudioEye is represented in this case by Akin Gump Strauss Hauer & Feld LLP
(Akin), one of the world’s largest law firms with 900 lawyers in 20 offices
around the globe. Its website states that the firm has a culture rooted in
collaboration and caring. I also urge this reputable firm to consider the
harms caused by this type of litigation that stifles public discourse on a
global civil rights issue.

Documents Related to AudioEye’s case against Adrian Roselli white man
(Adrian Roselli) speaking in front of a screen at a web access event in Hong
KongYou can read the Complaint in the lawsuit filed against Adrian, and the
documents Adrian and his lawyers have filed in court, on his website. They
are linked in an article there titled “AudioEye is Suing Me.”

On his site, as of the date I’m publishing this article, the most recent
documents are related to the July 6, 2023 Motion to Dismiss the case filed
by Adrian’s lawyers. These documents include a 34 page legal analysis that
starts with this sentence:

This case is a classic strategic lawsuit against public participation, or
“SLAPP.” AudioEye, Inc., a massive corporation, has picked out and sued an
individual critic explicitly to chill future speech.

The legal papers filed by Adrian’s lawyers also include statements
(officially called affidavits and affirmations) from Adrian and other
advocates within and outside the United States. These statements, available
here, support Adrian’s stated opinion about AudioEye and push back on the
idea of a company filing a lawsuit because they don’t like or agree with
that opinion.

I think the statement of well-respected British accessibility expert Léonie
Watson, a blind person and Director of the accessibility consultancy
TetraLogical reflects a sentiment shared by many of us in the global
accessibility community.

First Léonie explains that she “agreed with Adrian that “AudioEye’s overlays
do not work as advertised. I hold this opinion having verified many of Mr.
Roselli’s findings for myself, knowing that he, like all good investigative
researchers, shares his results for scrutiny and validation by other members
of the accessibility profession.”

Then she said:

Finally, I want to express my disgust at the very idea of an organisation
suing an individual who has pointed out flaws in their product that, had
they listened and acted, could have meant their product was much improved.
The security industry has matured to the point where researchers that
identify vulnerabilities in products and services are awarded bounties, not
threatened with legal action. One can therefore only speculate why AudioEye
has chosen to sue Mr. Roselli instead of responding positively to the
feedback Mr. Roselli offered.
Léonie Watson affidavit in AudioEye vs. Adrian Roselli

I’m an optimist. It’s never too late to change course. I hope AudioEye and
its lawyers do and drop this case.


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