Website advisory, accessibility, and compliance

Overview

A company’s website is no longer just a marketing asset; it is also a significant source of regulatory and litigation risk. From evolving data privacy mandates and a surge in accessibility lawsuits to the protection of digital brand assets, an unmonitored website can quickly become a high-stakes liability.

At McDonald Hopkins, our experience in data privacy and cybersecurity, intellectual property, and litigation provides clients with a comprehensive approach to protecting their online presence. Our attorneys offer proactive website advisory and compliance counseling designed to identify vulnerabilities before they escalate into costly regulatory scrutiny. If a challenge does arise, our litigators stand ready to defend your business with a sophisticated, results-driven strategy.

Website advisory and data privacy compliance services

Services we provide that mitigate risk and optimize online operations include:

• Drafting privacy policies and website terms of use: Our attorneys understand how important it is to comply with state and federal data protection laws and regulations and are adept at drafting privacy policies and website terms of use that are in accordance with all comprehensive state privacy laws, including the California Consumer Privacy Act (CCPA), with an emphasis on cookie disclosure and compliance, and other federal mandates.
• Advising on website and advertising technology best practices: Our attorneys counsel clients on proven techniques that help businesses design and maintain online platforms that are transparent, compliant, and reflective of current technology trends and standards.  Our attorneys have knowledge and expertise of industry best practices as well as legal compliance obligations specific to digital advertising and related technologies.
• Website audits: We frequently perform detailed analyses of client websites to identify and address potential issues before they become costly problems from a financial and other resource perspectives. Our attorneys review and make recommendations on content, site structure, and functionality as well as supporting privacy policies, terms of use, cookie disclosures, and accessibility accommodations to help businesses limit exposure, align with current technology, and achieve strategic objectives. 

Website accessibility

Under Title III of the Americans with Disabilities Act (ADA) and similar state laws, businesses that provide goods and services to the public are required to ensure their products and facilities are accessible to people with disabilities. Historically, ADA lawsuits focused on physical access barriers to businesses. In the past several years, however, thousands of lawsuits have been filed alleging that company websites qualify as places of public accommodation and, as such, websites with access barriers (such as websites not compatible with screen-reading software) deny disabled individuals the right of equal access. The theory is that poorly designed websites can create unnecessary barriers for people with disabilities, mainly the blind or visually impaired, just as poorly designed buildings prevent some people with disabilities from entering. Plaintiffs in these lawsuits typically seek injunctive relief (i.e., changes to the website) and attorneys’ fees that are authorized by statute. Some state laws allow plaintiffs to recover civil penalties.

Neither Congress nor the Department of Justice (the agency responsible for enforcing the ADA) has adequately clarified the scope of the ADA as to private website compliance. As such, courts have struggled to apply the law, doing so inconsistently. Often, the strength of a claim will hinge on the jurisdiction where the case is pending and the defendant's line of business.

Our attorneys have the knowledge, experience, and ability to efficiently and effectively defend these types of lawsuits. Our attorneys have successfully handled inquiries from the Department of Justice and have the technical capability to understand the Web Content Accessibility Guidelines (WCAG) established by the World Wide Web Consortium (W3C), which are often cited by courts and state statutes as the standard for website compliance. Our attorneys are also available for proactive counseling aimed at preventing accessibility claims before they progress to a lawsuit.