Bill Text: CA AB1757 | 2023-2024 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Accessibility: internet websites.
Spectrum: Committee Bill
Status: (Engrossed) 2023-08-21 - In committee: Set, second hearing. Hearing canceled at the request of author. [AB1757 Detail]
Download: California-2023-AB1757-Amended.html
NOYES
Local Program:
NO
disabled. a person with a disability. intentionally do either of the following:
Bill Title: Accessibility: internet websites.
Spectrum: Committee Bill
Status: (Engrossed) 2023-08-21 - In committee: Set, second hearing. Hearing canceled at the request of author. [AB1757 Detail]
Download: California-2023-AB1757-Amended.html
|
Amended
IN
Senate
July 03, 2023 |
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Amended
IN
Senate
June 12, 2023 |
CALIFORNIA LEGISLATURE—
2023–2024 REGULAR SESSION
Assembly Bill
No. 1757
| Introduced by Committee on Judiciary (Assembly Members Maienschein (Chair), Connolly, Dixon, Haney, Kalra, Pacheco, Papan, |
March 02, 2023 |
An act to amend the heading of Part 2.53 (commencing with Section 55.55) of Division 1 of, and to add Sections 55.565 and 55.566 to, the Civil Code, relating to accessibility.
LEGISLATIVE COUNSEL'S DIGEST
AB 1757, as amended, Committee on Judiciary.
Accessibility: internet websites.
Existing law imposes liability upon a person who denies, aids or incites a denial, or makes any discrimination or distinction contrary to rights afforded by law, for actual damages suffered, exemplary damages, a civil penalty, and attorney’s fees, as specified, to any person who was denied the specified rights. Existing law also imposes liability upon a person, firm, or corporation that denies or interferes with admittance to or enjoyment of public facilities or otherwise interferes with the rights of an individual with a disability, as specified, for damages and attorney’s fees to a person who was denied those rights.
This bill would specify that statutory damages based upon the inaccessibility of an internet website under these provisions shall only be recovered against an entity, as defined, if the internet website fails to provide equally
effective communication or facilitate full and equal enjoyment of the entity’s goods and services to all members of the public. The bill would require, in order for a plaintiff to be entitled to statutory damages for internet website inaccessibility, the plaintiff to prove either that they personally encountered a barrier that caused them to experience a difference in their access to, or use of, the website as compared to other users, as specified, or that they were deterred from accessing all or part of the internet website or the content of the website because of the website’s failure to provide equally effective communication or to facilitate full and equal enjoyment of the entity’s goods and services offered to the public. The bill would specify that an internet website is presumed to provide equally effective communication for the purpose of determining whether an award of minimum statutory damages is warranted, as
specified, if the internet website, taking into account the variety of conforming implementations that may be used to meet the internet website-related accessibility standard, complies with conforms to an internet website-related accessibility standard, as defined.
This bill would make it unlawful for any resource service provider, in exchange for remuneration, to intentionally intentionally, negligently, or knowingly construct, license, distribute, or maintain for online use, an internet website that fails to comply with
conform to the internet website-related accessibility standard. standard or to intentionally, negligently, or recklessly make a false representation that an internet website conforms to the internet website-related accessibility standard. The bill would authorize a civil action by a person who is unable to obtain equally effective communication or full and equal enjoyment of an internet website, the content of an internet website, or goods and services offered to the public on an internet website, as a result of the failure of an internet website to meet the internet website-related accessibility standard, that violation,
with remedies as prescribed. The bill would further authorize a civil action by a person or entity that pays, compensates, or contracts with a resource service provider to construct, license, distribute, or maintain an internet website for the purpose of providing equally effective communication or facilitating full and equal enjoyment of the person or entity’s goods and services to all members of the public, including any member of the public who is disabled,
a person with a disability, with remedies as prescribed. The bill would also authorize the Attorney General or a district attorney, county counsel, or city attorney to bring an action to obtain injunctive or declaratory relief and attorney’s fees and costs. The bill would provide that a provision within a contract between a person or entity and a resource service provider that seeks to waive liability under these provisions provisions, or otherwise shift liability to a person or entity that pays, compensates, or contracts with the resource provider, as provided, is void as a matter of public policy and subject to specified provisions of the Ralph Civil Rights Act of 1976 relating
to waiver of rights.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee:Bill Text
The people of the State of California do enact as follows:
SECTION 1.
The heading of Part 2.53 (commencing with Section 55.55) of Division 1 of the Civil Code is amended to read:PART 2.53. ATTORNEY'S FEES AND STATUTORY DAMAGES IN ACCESSIBILITY STANDARDS CLAIMS
SEC. 2.
Section 55.565 is added to the Civil Code, immediately following Section 55.56, to read:55.565.
(a) Statutory damages under subdivision (a) of either Section 52 or Section 54.3 shall only be recovered against an entity based upon the inaccessibility of an internet website developed, procured, maintained, or used by that entity if the internet website fails to provide equally effective communication or facilitate full and equal enjoyment of the entity’s goods and services to all members of the public, including any member of the public who is(b) To be
entitled to statutory damages for internet website inaccessibility, a plaintiff must prove one of the following:
(1) That the plaintiff personally encountered a barrier that caused the plaintiff to experience a difference in their ability to access or use the website as compared to other users such that the plaintiff was unable to acquire the same information, engage in the same interactions, or enjoy the same services with substantially equivalent ease of use, or to have the same level of privacy and independence as other users who are not disabled. persons with a disability.
(2) That the plaintiff was deterred from
accessing all or part of the internet website or the content of the website because of the website’s failure to provide equally effective communication or to facilitate full and equal enjoyment of the entity’s goods and services offered to the public.
(c) (1) An internet website is presumed to provide equally effective communication for the purpose of determining whether an award of minimum statutory damages is warranted under subdivision (a) of Section 52 or 54.3, if the internet website, taking into account the variety of conforming implementations that may be used to meet the internet website-related accessibility standard, complies with
conforms to the internet website-related accessibility standard.
(2) The presumption set forth in paragraph (1) affects the plaintiff’s burden of proof. Upon the defendant establishing by a preponderance of the evidence that the internet website complies with conforms to the internet website-related accessibility standard, the plaintiff may rebut the presumption with clear and convincing evidence, showing that, notwithstanding the internet website’s compliance with conformance to
the standard, the elements of one of the violations set forth in subdivision (b) are established.
(d) This section is not intended to do any of the following:
(1) Limit the rights and remedies available to disabled persons
with a disability under federal law, or any other state law.
(2) Affect whether an entity is responsible under either Section 51 or 51.5 for making its premises accessible to all members of the public, including the disabled
persons with a disability and including by means of accessing and using the entity’s internet website.
(3) Resolve, or otherwise address, whether an internet website that is a standalone website-only business and not associated with a business that has a physical location in California is subject to liability under Sections 51, 54, and 54.1.
(4) Establish a presumption of liability, affect the burden of proof, or otherwise impact a court’s determination of liability when an internet website does not conform to the internet website-related accessibility standard and in which case the presumption established in paragraph (1) of subdivision (c) therefore would not apply.
(5) Require an entity to conform to the internet website-related accessibility standard.
(6) Demonstrate an intent by the Legislature, in enacting this section, to deprive or limit the exercise of jurisdiction by federal courts over state law claims brought in conjunction with any federal claim under the Americans with Disabilities Act (42 U.S.C. Sec. 12101 et seq.) or other federal law.
(e) For purposes of this section, the following definitions apply:
(1) “Conform” means that the entity’s internet website meets the criteria specified by the applicable internet website-related accessibility standard, as defined in paragraph (4). For purposes of the Web Content Accessibility Guidelines (WCAG) 2.1 Level AA standard
for the accessibility of internet websites established by the World Wide Web Consortium (W3C) Accessibility Guidelines Working Group on June 5, 2018, an entity conforms to that standard when the entity’s internet website meets all of the Success Criteria set forth in the standard.
(1)
(2) “Entity” means a business establishment that is open to the public, a public place, or a place of public accommodation. accommodation or any other business or place that is subject
to the provisions of Sections 51, 54, or 54.1.
(2)
(3) “Internet website” includes all internet web-based technology, including, but not limited to, a mobile application
site or application, or app an app,
that can be accessed by a mobile device.
device or other electronic device.
(3)
(4) “Internet website-related accessibility standard” means the Web Content Accessibility Guidelines (WCAG) 2.1 Level AA standard for the accessibility of internet websites established by the World Wide Web Consortium (W3C) Accessibility Guidelines Working Group on June 5, 2018, or the accessibility standards for Section 508 of the federal Rehabilitation Act of 1973 (29 U.S.C. Sec. 794d) in Part 1194 of Title 36 of the Code of Federal Regulations. To the extent that there is an overlap
a difference or conflict between the applicable standards for internet websites under WCAG 2.1
Level AA and standards for information or communication technology under Section 508 of the federal Rehabilitation Act of 1973, the more recent WCAG 2.1 Level AA standard shall apply. Any subsequent apply, unless a more stringent update, revision, or replacement to either standard adopted by any final rule of the U.S. Access Board the accessibility standards for Section 508 of the federal Rehabilitation Act of 1973 (29 U.S.C. Sec. 794d) in Part 1194 of Title 36
of the Code of Federal Regulations is adopted by any final rule of the federal Access Board after the date of the enactment of this section, in which case that final rule shall apply to this section.
(f) This section applies to any civil action filed on or after January 1, 2024.
SEC. 3.
Section 55.566 is added to the Civil Code, to read:55.566.
(a) It is unlawful for any resource service provider, in exchange for money or any other form of remuneration, to(1) Intentionally, negligently, or knowingly construct, license, distribute, or maintain for online use, an internet website that fails to comply with
conform to the internet website-related accessibility standard.
(2) Intentionally, negligently, or recklessly make a false representation that an internet website conforms to the internet website-related accessibility standard.
(b) The following parties may bring a civil action pursuant to this subdivision: subdivision (a):
(1) (A) A person who is unable to obtain equally effective communication or full and equal
enjoyment of an internet website, the content of an internet website, or goods and services offered to the public on an internet website, as a result of the failure of an internet website to meet the internet website-related accessibility standard. violation.
(B) The remedies for a violation of this section pursuant to this paragraph are the remedies provided in subdivision (a) of Section 52.
(2) (A) A person or entity that pays, compensates, or contracts with, the resource service provider to construct, license, distribute, or maintain an internet website for the purpose of
providing equally effective communication or facilitating full and equal enjoyment of the person or entity’s goods and services to all members of the public, including any member of the public who is disabled. a person with a disability.
(B) A party plaintiff who prevails under this paragraph shall be entitled to collect all damages, including, but not limited to, any statutory damages and attorney’s fees paid by the person or entity as a result of a lawsuit against the person or entity pursuant to Sections 51, 54,
and 54.1, based upon the inaccessibility of the person or entity’s website, and all costs of bringing their internet website into compliance with conformance to the internet website-related accessibility standard.
(c) Notwithstanding subdivision (b), the Attorney General or a district attorney, county counsel, or city attorney may bring an action under this section to obtain the following:
(1) Injunctive or declaratory relief.
(2) Attorney’s fees and costs.
(d) A provision within a contract
between a person or entity and a resource service provider that seeks to waive liability under this section
section, or otherwise shift the liability to a person or entity that pays, compensates, or contracts with the resource service provider, as described under paragraph (2) of subdivision (b), is void as a matter of public policy and subject to subdivision (c) of Section 51.7.
(e) This section does not limit or alter the application of other laws, including, but not limited to, Sections 51, 54, and 54.1, or the ability of a plaintiff to bring a civil action under any other theory of the law, including, but not limited to, breach of contract, implied warranty of merchantability, or false or deceptive advertising.
(f) (1) For purposes of this section, the following terms have the following meanings: same meanings as provided in subdivision (e) of Section 55.565:
(1)“Entity” has the same meaning as provided in subdivision (e) of Section 55.565.
(2) “Internet website” has the same meaning as provided in subdivision (e) of Section 55.565.
(A) “Conform.”
(B) “Entity.”
(C) “Internet website.”
(3)
(D) “Internet website-related accessibility standard” has the same meaning as provided in subdivision (e) of Section 55.565.
standard.”
(4)“Resource
(2) For purposes of this section, “resource service provider” means a person or entity that, in exchange for money or any other form of remuneration, constructs, licenses, distributes, or maintains for online use any internet website or resource to be used within or in conjunction with an internet website.
(g) This section is not intended to do any of the following:
(1) Limit the rights and remedies available to a person with disabilities under the federal law or any other state law.
(2) Affect whether an entity is responsible under either Section 51 or 51.5 for making its premises accessible to all members of the public, including persons with a disability and including by means of accessing and using the entity’s internet website.
(3) Resolve,
or otherwise address, whether an internet website that is a standalone website-only business and not associated with a business that has a physical location in California is subject to liability under Sections 51, 54, and 54.1.
(4) Establish a presumption of liability, affect the burden of proof, or otherwise impact a court’s determination of liability when an internet website does not conform to the internet website-related accessibility standard.
(5) Require an entity to conform to the internet website-related accessibility standard.
(6) Demonstrate an intent by the Legislature, in enacting this
section, to deprive or limit the exercise of jurisdiction by federal courts over state law claims brought in conjunction with any federal claim under the Americans with Disabilities Act (42 U.S.C. Sec. 12101 et seq.) or other federal law.
