Indemnification is an under the radar topic in web accessibility but it comes up.
An indemnification clause in a contract makes a guarantee that the indemnifier will cover a potential loss, expense, harm, and/or damage that arises under the contract.
In this scenario, the provider makes or certifies your website accessible and if you get sued or receive a demand letter, they’ll take care of you on that end.
Indemnification naturally flows from the question of certification.
Certification is an official statement issued by the provider stating that your website is accessible or conforms to WCAG 2.0 AA or 2.1 AA, etc.
When indemnity and certification come up, clients are seeking to protect their interests by getting formal assurance. They want:
- To make sure they don’t get sued anymore; they want to be in compliance with the law.
- To be taken care of in case they do get sued.
- A legal hedge towards competency (put your money where your mouth is type of thing).
From the provider side, companies that offer remediation or audits have a handful of considerations:
- We can’t stop a wayward lawyer from making a claim even if the site is legitimately accessible.
- We can’t certify ADA compliance because there is no legal prescription for what that means for the digital world.
- The legal world is an uncertain ball of hangers. What’s our time / money cost?
- Can we compel a settlement from a client vs. proceeding to litigation?
- Is the marketing allure worth offering indemnity to clients?
- How do we address changes made to the client website or app? What if the client needs to continually update their site?
- How much control can we have over the client’s digital offerings?
And, once again, we’re at a place where a once simple concept has become convoluted and complicated when two parties have to contractually account for all the contingencies and dynamics.
There’s certainly a market for certification and then indemnification but it does require precision, competence, and infrastructure on the provider side.
It’s easy to see why some companies avoid offering certification and indemnification all together.
As a quick research project from me to you, I searched the websites of 13 accessibility agencies and looked for whether they provide certification and/or indemnification.
Here are my findings:
WebAIM – They audit websites but it doesn’t appear that they offer remediation. They will provide certification on their audits but the certification is only good as of the date inspected.
Level Access – Expressly feature indemnification: “…we’ll back you up on that and take on the cost of those lawsuits…It’s the basis for a litigation cost indemnification framework we use with our customers on ADA compliance claims pertaining to their digital assets.” Nothing definitive on certification.
Knowbility – I don’t see remediation offered, the primary services are consultation and audits with no mention of indemnification or certification.
Usablenet – Directly off their website, “UsableNet provides ADA/WCAG certification”. It appears as if training and regular audits are a part of the certification.
Paciello Group – From their blog, “While there is no way to indemnify an organization against any type of legal action…”. They offer certification in the form of a WCAG 2.0 conformance statement issued through their acquisition, Interactive Accessibility. However, on their website, they also say, “Unfortunately, a web accessibility “certification” will not eliminate your risk of a lawsuit. There is no authoritative body that offers a certification and there is no precedent that has proven proprietary certifications to be even remotely effective.”
MicroAssist – Nothing definitive.
Boia.org – “we now provide our clients with reports to prove that their digital properties are accessibility (sic).” They call this a Letter of Reasonable Accessibility™.
AkeaWeb – “…at AKEA Web Solutions, our primary focus is on the issuance of a Letter of Conformance”
Deque – I know have issued statement of conformances but I did not see that offering on their website.