Ethical Problems with Overlays and How to Overcome Them

By Karl Groves , Chief Innovation Officer, Level Access

Preface

In all conversations regarding accessibility overlays and ethics, it is important to remember that there is one ethical problem with overlays that current-generation overlays cannot overcome: overlays take a "separate but equal" approach to accessibility. They require the user who needs an accessible experience to actively trigger that experience. This goes beyond just the features of the overlay widget and includes the automated repair capabilities among some overlay products. For example, during my research for the Murphy vs. Eyebobs case, I showed that the automated repairs in the underlying DOM of the page were not triggered unless the user had specifically enabled the necessary mode in the overlay. If an overlay is used as the sole approach to improving a website's accessibility, this ethical problem remains.

Summary

Web accessibility overlays are strongly maligned by leaders in the accessibility field. There are many valid reasons for the negative feelings toward overlays, but few are about the technology itself. While the current field of products in the space does have a number of technical shortcomings, the bigger issues with overlays have to do with how they’re marketed and sold, as well as how overlay companies interact with the accessibility community. All of these issues, including the technical issues, can be addressed by a company who is focused on doing so. An ethical overlay vendor must be a contributing, positive, good-faith member of the accessibility community who views its mission as more than just making money and is instead focused on making money by improving people’s lives through technology.

Introduction

The Overlay Fact Sheet provides the following definition of an overlay:

Overlays are a broad term for technologies that aim to improve the accessibility of a website. They apply third-party source code (typically JavaScript) to make improvements to the front-end code of the website.

Accessibility overlays are easily identified by their "widget," which is launched by activating a control visually signified by one of the many variations of either the disability icon or universal access icon.

In general, the overlay market consists of vendors who are regarded by those in the accessibility field as bad actors in the marketplace. This negative opinion is principally driven by concerns relating to purported false advertising claims which tend to diminish, by proxy, the credibility of anyone who makes such a product. This, unfortunately, tends to draw attention away from technology that could provide benefit to both the implementer and end user of such a product. This article seeks to address these problems and propose solutions to them.

Current overlays lack feature parity with native assistive technologies.

The lack of feature parity with native assistive technologies exacerbates the "separate but equal" nature of accessibility overlays. The overlay widgets’ assistive features are ostensibly intended to improve the user experience of visitors to the websites on which the widget is installed. In a prior post on my blog, I cataloged the ways that the assistive features provided by overlay widgets are not consistent across products. Additionally, the assistive features offered by overlays often do not have equal effectiveness with what already exists in either the user’s operating system (OS) or their browser. Of all of the assistive features provided by overlay widgets, only three of them do not exist on the user’s computer prior to their visit to the website that contains the overlay. This lack of feature parity reduces the overall utility of the product for end users.

There is, however, a large amount of empirical data that shows that end users do not know how to find and activate those assistive features already built into their computer, do not understand what they do, and do not understand how to use them. Reliable data does not exist yet regarding whether overlay widgets are easier to understand and use, and overlay vendors tend to offer little more than anecdotal proof. That said, it is easy to see cases where some overlay features could be understood as beneficial, especially by less tech-savvy end users.

At the same time, there are also many anecdotes that some types of users hate overlays and find them disruptive to their experience on the web, often opting to install browser extensions to block them. Numerous users have complained that the addition of an overlay to a website has a negative impact on their experience.

The ethical solution to this problem

This problem is not insurmountable. In the case of feature parity, an ethical overlay’s features would maintain—at minimum—the same capabilities that the visitors’ computers already have. Modern web development techniques, which are now well-supported by browsers, should make this possible.

In the case of user experience (UX) and user awareness, the producer of an ethical overlay will do four things:

1. Ensure that the overlay does not interfere with the operation of other assistive technologies on the user’s computer.
2. Conduct user research to improve the widget’s user experience.
3. Inform the end user about how they can utilize their computer’s built-in capabilities to gain more utility and enjoyment from the web.
4. Also offer a browser extension version of the widget with those same capabilities for users who are anxious about digging into their OS settings but wish to apply the overlay’s benefit throughout their use of the web.
5. Monitor and disclose statistics (with user permission, of course) on the features used most frequently by end users.

While there may be reluctance to the idea of offering a browser extension, doing so enables the ethical overlay vendor to:

• Provide for an ethical organization to achieve its mission of improving peoples’ lives through technology.
• Disrupt the overlay market via innovation and differentiation.
• Overcome much of the criticism from many in the accessibility field.
• Expand brand visibility.
• Provide better data collection on the usage patterns of users who have found the products to be beneficial.
• Allow users to retain their preferences across sites. After all, if the product is useful on one site, it will be useful on all sites the user visits.

When it comes to interference with assistive technologies, an ethical overlay vendor would aggressively prioritize interoperability so that its product does not reduce accessibility for users who are already using a different product to browse the web.

Automated repair’s effectiveness is limited.

On the automated repair front, the long-term viability of such an approach is a significant challenge on its own. While there are a non-trivial number of accessibility issues that can be automatically repaired, the current field of overlay products often does a poor job of automated repair. Full knowledge of overlays’ inner workings is difficult to obtain, but I propose that there are three causes for this inability:

• There are approximately 1,400 combinations of operating systems and versions, browsers and browser versions, and typical screen resolutions. While the improvement of web standards support within operating systems and browsers has improved significantly, there are always quirks and bugs, making reliable repair of some issues problematic.
• Modern web development frameworks encapsulate all their presentation logic and business logic within components that cannot be pierced by third-party code, such as that from an overlay.
• Automated repair, when possible, still does not meet the need for a fully remediated website.

The ethical solution to this problem

The ability to make a demonstrable improvement to a website’s accessibility quickly has a high value to website owners. This is a market reality. In research I conducted with colleagues at my former company, we discovered that 60 percent of accessibility issues that can be discovered automatically (by volume) can also be repaired automatically. The ethical solution is one in which a customer deploys the overlay to the website to get the immediate benefit thereof. This can provide some respite to end user difficulties while the website undergoes automatic testing to determine what additional issues exist that can also be tackled in the nearest term. From there, the website’s developers should be trained in accessibility, further comprehensive testing should be performed on the site, and plans should be made to finish the remediation effort so that the site can become accessible on its own, without the overlay. Truly eliminating the separate-but-equal nature of overlays depends on the repair of the website itself, eliminating the risk of a two-experience world for end users.

There may be organizations unable or unwilling to take these final steps to make their website accessible. While it is not possible to force customers to do what is right, it is possible for an ethical overlay vendor to provide this guidance, nonetheless. Whether the customers avail themselves of this guidance is up to them.

• Customers—or the vendors who create and manage their sites and digital experiences—should be offered training that provides an overview of accessibility (and the product’s capabilities) as part of onboarding.
• The widget should contain automated monitoring capabilities, the results of which should be sent to the customer, so they remain aware that there is more work to be done to become fully accessible and to provide specific guidance on what additional work is needed to do so.

Overlay vendors frequently engage in deceptive marketing.

Many of the strongest criticisms made against overlay vendors relate to the types of claims and promises made in their marketing, such as:

• False claims in advertising, social media, and their websites
• False claims during sales calls and email marketing
• Native advertising (promotional content that appears journalistic or editorial but is actually sponsored or paid for)
• Fake reviews

Overlay vendors traffic in false claims, the likes of which rival tactics in the financial sector like marketing reverse mortgages with “no additional costs” to consumers. In fact, an argument could be made that overlay vendors are more unabashed in their willingness to spread falsehoods because they are less likely to face scrutiny from the Federal Trade Commission (FTC) than they would if they made the same types of false claims about financial products. While some overlay producers have toned down the deceptiveness of their messaging—largely in response to the volume of negative feedback they have received—their use of tactics like native advertising and fake reviews persists.

These activities have resulted in more, not less, resistance to their products among accessibility professionals. As a case-in-point, any non-negative mention of an overlay company by the International Association of Accessibility Professionals (IAAP) will receive immediate, sharp criticism from accessibility professionals who—for good reason, so far—have come to associate overlay vendors with lies.

The ethical solution to this problem

The mere thought of an overlay is now likely to receive a sharply negative response in some circles. These circles consist of people who could be just as powerful as advocates for a company as they are as detractors.

The solution to this problem is easy. In fact, it’s shocking that existing overlay vendors have not yet understood how easy it is. The solution to this problem is transparency and honesty. Messaging such as “We already did the work for you” or “Compliant with ADA & WCAG Laws on Day 1 of implementation” (both of which are actual statements from overlay vendors) should be replaced with far more honest messaging. In addition, accessibility advocates should be actively courted with honesty, transparency, and a spirit of collaboration that embraces them as peers.

Overlay vendors engage in attacks against their critics, including lawsuits and threats of legal action.

To date, I am aware of four overlay vendors who have threatened to sue their critics, and two of those have done so. Both FACIL'iti and AudioEye have filed lawsuits against critics. These lawsuits have been characterized by some in this field as a Strategic Lawsuit Against Public Participation (SLAPP), which is a tactic specifically used to not only silence the critic being sued but to also create a chilling effect on future criticism.

The ethical solution to this problem

As mentioned earlier, an ethical overlay vendor would choose to embrace accessibility professionals, not alienate them. Although this tactic should seem obvious, it has eluded overlay vendors. Instead of avoiding, alienating, and attacking critics, they should be embraced as a specific type of stakeholder. Logic dictates that when hundreds of professionals in the field all levy the same criticism, they should be listened to. An ethical overlay vendor would become involved in the accessibility community and seek frequent feedback from accessibility professionals during various phases of product development.

Overlay vendors often sell only the overlay.

As mentioned already, some customers have only the desire or budget (or both) to purchase an overlay. In their quest for the all-too-desirable ARR (Annual Recurring Revenue), overlay vendors appear to be content with getting their customers’ subscription revenue and moving on. This only serves to perpetuate the “separate but equal” issue overlays create across the web.

The ethical solution to this problem

An ethical overlay vendor would understand both the limited effectiveness of automated repair and the potential for the product’s eventual discontinued use. In the latter case, an ethical overlay vendor should be focused on ensuring the long-term accessibility of the site on which its overlay is deployed. The likelihood that the overlay is eventually removed or replaced means that the ethical vendor will encourage customers to make repairs to the website directly so that the automated repair features of the overlay are eventually unnecessary.

While it is necessary to acknowledge that some organizations may never move beyond the installation of the overlay, it is also equally important to be an ever-present influence toward doing the right thing. Far beyond a simple marketing activity, an ethical solution is one in which customers are educated in why accessibility is important, why an overlay is not enough to become accessible, and how the ethical provider can lead them down the correct path.

Putting it together: What would an ethical overlay look like?

There are two realities currently colliding with one another in the marketplace: 

• The unceasing pace of accessibility-related lawsuits being filed every day in the United States, and
• A non-trivial number of website owners lacking the budget or staff needed to improve the accessibility of their website.

To many, overlays seem as though they could be a viable solution to the above. However, truly resolving a website’s accessibility issues requires a comprehensive approach that includes human involvement in the process. Although innovative technologies, such as artificial intelligence (AI), show promise in reducing the amount of human effort required, AI is best seen as a valuable tool for the human worker charged with making a website more accessible, rather than a replacement for that worker. This does not, however, lead to the conclusion that products that already exist in the marketplace cannot form the backbone of a more comprehensive approach. It is with this lens that an ethical overlay should be viewed.

An ethical overlay must be inherently user-focused.

The prevailing philosophy one should have when going to market with any overlay-type product is that the product’s goal is to improve people’s lives through technology. This means that the product’s development, design, delivery, and management must all done with a focus of better serving its end users.

An ethical overlay’s assistive features must have, at minimum, feature parity with operating systems and browsers' assistive features.

Current conventional wisdom suggests that the assistive features of overlay widgets are used heavily during sales demos to show off the “transformations” of the page to uninformed customers who do not realize that almost all those transformations can be made without the widget. An ethical overlay must have feature parity with the end user’s operating system and browser because an ethical overlay is user-centric and, as a result, aims to deliver the best possible user experience. This does not mean that the overlay needs to offer every capability that the operating system and browser offer, but rather that, when they do offer a feature available in the operating system or browser, it is at least as good. Of course, being better is also a fine approach!

An ethical overlay widget must provide features that are focused on effective benefit to end users and must not attempt to overreach.

Some of the assistive features of overlay widgets appear to have been developed out of a misunderstanding of what challenges people with disabilities face online. An ethical overlay will limit its features only to those that have proven benefit to users, avoiding needlessly including features that no audience needs.

An ethical overlay must also be offered as a browser extension and educate users on how to use their computer’s built-in assistive features.

Among the strongest arguments against overlay widgets is that they are sold as a per-site solution. But users who need those on-page enhancements will need them on every website they visit. Because of this, the end user is better off having a single product that they install in their browser. Customers may balk at this idea, but the point must be made that the overlay product is more than just the widget. Customers receive a comprehensive service, and the widget is only a part thereof.

In addition to the browser extension, an ethical overlay must attempt to inform end users about the built-in assistive features of their computer and how to use them.

An ethical overlay must be part of a comprehensive, managed accessibility program.

Although many organizations are likely to face resource constraints that prevent them from fully embarking on the kinds of programs that bigger companies do, that does not mean they cannot benefit from product-related features and services that extend beyond the overlay widget, such as:

• “Baked-in” repairs for common, easily fixed issues.
• Ongoing monitoring to track the repair of issues and discover the introduction of new defects.
• Customized repairs for issues that can be repaired in production but require some degree of customization.
• An accessibility statement displayed to inform all end users what the organization is doing to address accessibility.
• Point of contact service to facilitate effective accessibility-related communication between the site owner and their end users.

Overall, an ethical overlay vendor must be honest and transparent in all communications with its customers and the public.

The largest volume of criticism made against overlay vendors has to do with the false claims they make regarding the capabilities of their products, like:

• “We already did all the work [to make your website accessible] for you!”
• “In up to 48 hours, your website is accessible and compliant.”
• “Compliant with ADA & WCAG Laws on Day 1 of implementation”
• “…full WCAG & ADA compliance from day one, and every single day thereafter”
• “…a 100% ADA WCAG 2.1 AA compliant solution that will make your website accessible by all”
• “Avoid Litigation. Maintain the Highest Level of Compliance 24/7”

These claims have been thoroughly debunked many times over by experts in the accessibility field, leading nearly 800 people across the world to sign a factsheet against overlays. Over 100 articles have been written by accessibility experts and advocates debunking the false claims from overlay vendors. Authors of such articles include members of the Board for the World Wide Web Consortium (W3C), authors of web accessibility standards, developers of assistive technologies, and lawyers for people with disabilities.

An ethical overlay vendor will need to take honesty and transparency to the extreme, lest they become lumped in with the rest. The ethical overlay vendor will need to embrace the accessibility community, inviting them in, as it were, and helping them to understand its motivations and the differences between it and other overlay vendors.