In the Wake of ADA Lawsuits, PopUp Ads Come Under Scrutiny

Pop-up ads have become a common nuisance in today’s day and age, but now there may be additional legal complications and consequences associated with the practice. Recently, the legal community has seen a large increase in the filing of lawsuits under the Americans with Disabilities Act “(“ADA”). Many top retailers, academic institutions, online streaming services, and technology giants have been subject to lawsuits that claim that their websites are discriminatory and violate the civil rights of Internet users that are sight and/or hearing-impaired. These lawsuits allege that the lack of screen readers or closed-captioning on videos or content posted on these Internet websites violate the civil rights of users with disabilities.

Despite the public outcry for government oversight and general confusion over legal requirements, the United States Department of Justice has continually delayed the release of their official guidelines and comments, stating that guidelines are expected to be released some time in 2018.

In the meantime, the increasingly aggressive use of popup ads has now come under scrutiny. The American Foundation for the Blind has stated that many blind or sight-impaired users increasingly encounter extreme frustration when attempting to navigate the web. Because many popup ads intentionally make it difficult to dismiss or close the popup ad by disguising the dismiss button or by making the button extremely small, sight-impaired users have found it difficult to be able to tap the dismiss button with the requisite precision.

Likewise, users that rely on screen readers often face similar issues. Currently, it is common in the web-programming industry to append coding of popup ads to the bottom of the webpage. As a result, users that rely on screen readers often encounter garbled content at the end of the webpage they are perusing, without any type of forewarning. Basically, these users may be surfing the web and then begin to suddenly hear the garbled translation of popup ads (e.g., “free stuff, jpeg024, link, link, png, etc.) jarringly at the end of the page.

To further exacerbate the issue, there is no legal requirement that coding for the keyboard-equivalent of “dismiss” keys be included in popup ads. As such, whether it is due to sheer oversight or other more nefarious reasons, many websites fail to include these keyboard-equivalent-dismiss keys in their ads. As a result, web users that rely solely on the use of a keyboard, as opposed to those that use a mouse or trackpad, may not even be able to dismiss popup ads or navigate off the offending ads and pages.

Overall, the legal community had seen an explosion in ADA-related lawsuits over the past few years. It is highly likely that the increasingly aggressive behavior of popup ads and similar type of ad-behavior will only result in even more ADA-related litigation.

For more information on this topic, please visit our eCommerce Compliance service page, which is part of our Internet & eCommerce practice. 

Klemchuk LLP is an Intellectual Property (IP), Technology, Internet, and Business law firm located in Dallas, TX.  The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights.  The firm also provides a wide range of technology, Internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution.  Additional information about the Internet & eCommerce firm and its Internet & eCommerce attorneys may be found at www.klemchuk.com.

Klemchuk LLP hosts Culture Counts, a blog devoted to the discussion of law firm culture and corporate core values with frequent topics about positive work environment, conscious capitalism, entrepreneurial management, positive workplace culture, workplace productivity, and corporate core values.

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