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AB-1757 Accessibility: internet websites.(2023-2024)

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Date Published: 06/12/2024 09:00 PM
AB1757:v94#DOCUMENT

Amended  IN  Senate  June 12, 2024
Amended  IN  Senate  August 15, 2023
Amended  IN  Senate  July 13, 2023
Amended  IN  Senate  July 03, 2023
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, and Reyes) Assembly Member Kalra

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 Kalra. Accessibility: internet websites.
The Unruh Civil Rights Act (Unruh Act) requires persons within the jurisdiction of the state to be free and equal and, regardless of the person’s sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status to be entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments, as prescribed, and makes a violation of the federal Americans with Disabilities Act of 1990 (ADA) a violation of the act.
Existing law imposes liability upon a person who denies, aids, or incites a denial of, 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 provide that statutory damages based upon the inaccessibility of on the basis of a specific accessibility barrier on 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. is not accessible, as defined. The bill would require, in order for a plaintiff to be entitled to statutory damages for internet website inaccessibility, on the basis of a specific accessibility barrier that constitutes a violation of the Unruh Act by violating the ADA, the plaintiff to prove either that the plaintiff personally encountered a specific barrier that caused the plaintiff to experience a difference in the plaintiff’s access to, or use of, the internet website as compared to other users, as specified, users because the internet website was not accessible or that the plaintiff was deterred from accessing or using all or part of the internet website or the content of the internet website because of the internet 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 provide that an entity’s internet website is presumed to provide equally effective communication and to facilitate full and equal enjoyment of the entity’s goods and services to all members of the public for the purpose of determining whether an award of statutory damages is warranted, as specified, if the internet website has a certain certification by a professional reviewer, as defined, that, among other things, the internet website is designed and intended to conform to the internet website-related accessibility standard, as defined. the internet website was not accessible. The bill would prohibit, in a civil action seeking statutory damages under the Unruh Act and the other provisions described above therewith on the basis of a specific accessibility barrier, as defined, on an entity’s internet website that is a violation of the ADA, the entity from being liable for those damages if the entity establishes, as an affirmative defense to the claim, certain elements, including that the entity identified the specific accessibility barrier in a digital accessibility report posted on the accessibility page, as specified, of its internet website.
This bill would make it unlawful for a resource service provider, as defined, in exchange for remuneration, to intentionally, negligently, recklessly, or knowingly construct, license, distribute, or maintain for online use an internet website that fails to provide equally effective communication or fails to 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 a person with a disability. is not accessible or any resource or part of an internet website that, when used by the entity in accordance with any instructions provided by the resource provider, causes an entity’s internet website to be inaccessible. The bill would also make it unlawful for a resource provider to intentionally, negligently, knowingly, or recklessly make certain false representations, including that the resource provider is a professional reviewer or otherwise qualified to assess the accessibility of an internet website. internet website is accessible or conforms to the internet website accessibility standard, as defined. The bill would authorize a civil action by a person by, among others, an individual 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 a person with a disability, that is accessible who is injured as a result of the defendant’s violation of the bill and reasonably relied upon the resource provider to ensure that the internet website, or a part of the internet website, is accessible, with remedies as prescribed. The bill would also authorize the Attorney General, the Civil Rights Department, 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 provide, subject to an exception, that a provision within a contract between a person an individual or entity and a resource service provider that seeks to waive liability under these 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.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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 on the basis of a specific accessibility barrier on an internet website that is 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 a person with a disability. is not accessible.
(b) To be entitled to statutory damages for internet website inaccessibility, on the basis of a specific accessibility barrier that constitutes a violation of subdivision (f) of Section 51, a plaintiff shall prove one either of the following:
(1) That the plaintiff personally encountered a specific barrier that caused the plaintiff to experience a difference in the plaintiff’s ability to access or use the internet 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 persons with a disability. because the internet website was not accessible.
(2) That the plaintiff was deterred from accessing or using all or part of the internet website or the content of the internet website because of the because the internet 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. website was not accessible.

(c)(1)An entity’s internet website is presumed to provide equally effective communication and to facilitate full and equal enjoyment of the entity’s goods and services to all members of the public for the purpose of determining whether an award of statutory damages is warranted under subdivision (a) of Section 52 or 54.3 if both of the following criteria are satisfied:

(A)The internet website has a certification by a professional reviewer that all of the following are true:

(i)The internet website is designed and intended to conform to the internet website-related accessibility standard.

(ii)The internet website has been tested, in both an automated manner and a manual manner by qualified users, and has been determined to conform to the internet website-related accessibility standard.

(iii)All third-party content that is available on the entity’s internet website by means of a link from the internet website and that allows members of the public to access, view, utilize, conduct transactions with respect to, or in any other way interact with, the entity or the entity’s goods, services, or presentations, has been tested, in both an automated and manual manner, and has been determined to conform to the internet website-related accessibility standard.

(B)The certification described in subparagraph (A) meets all of the following requirements:

(i)The certification is made within the prior 12 months or after revisions to the internet website that impact accessibility, whichever is more recent, and is based on a review that includes testing by qualified users.

(ii)The certification is posted, or available by means of a clearly marked link, on the home page of the entity’s internet website.

(iii)The certification includes a statement from the professional reviewer explaining how that person qualifies to be a professional reviewer. If the professional reviewer is not a Certified Professional in Web Accessibility (CPWA) with a certificate issued by the International Association of Accessibility Professionals (IAAP), the professional reviewer shall list the type of certification that person has obtained from another source of professional training for front-end internet website developers, as well as the criteria for issuance of that certificate, in order to demonstrate that the criteria are equivalent to, or higher than, the requirements for the issuance of a CPWA certificate.

(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 criteria set forth in paragraph (1) are satisfied and that the entity’s internet website is therefore presumed to provide equally effective communication and to facilitate full and equal enjoyment of the entity’s goods and services to all members of the public, the plaintiff may rebut the presumption with clear and convincing evidence, showing that, notwithstanding the presumption set forth in paragraph (1), the elements of one of the violations set forth in subdivision (b) are established.

(c) (1) For purposes of this section, judgment shall not be entered in favor of any party solely based on evidence of an automated scan of an internet website.
(2) (A) An entity’s internet website may be found to be accessible notwithstanding that content on the internet website that is described in subparagraph (B) is not accessible if a user of the internet website is not required to utilize the content in order to access, view, utilize, conduct transactions, or interact with the entity or the entity’s goods, services, or presentations via the internet, and the entity promptly makes the content available, upon request, to the requester in a format that is accessible to the requester.
(B) The content referenced in subparagraph (A) is either of the following:
(i) Data that has been archived as of January 1, 2025, and all of the following criteria are satisfied:
(I) The data are organized and stored in a dedicated area clearly identified as being archived.
(II) The data reproduce paper documents created before January 1, 2025, or reproduce the contents of other physical media created before that date.
(III) The data are retained exclusively for reference, research, or recordkeeping.
(IV) The data are not altered or updated after the date of archiving.
(V) The data may include conventional electronic documents posted and made available on the internet website before January 1, 2025, in word processing, presentation, PDF, or spreadsheet files.
(ii) Content that is posted by a third party and not developed, procured, used, funded, or otherwise controlled by the entity, including by means of a contractual, licensing, or other arrangement between the third party and the entity.
(3) In a civil action alleging that an internet website is not accessible, the party who asserts that an entity’s internet website meets the requirements to be deemed accessible pursuant to paragraph (2) has the burden of proving both of the following:
(A) Any content that is not accessible is content that is described in subparagraph (B) of paragraph (2).
(B) Upon request, the entity promptly made the content available to the requester in a format that was accessible to the requester.
(d) (1) In a civil action seeking statutory damages under subdivision (a) of Section 52 or 54.3 on the basis of a specific accessibility barrier on an entity’s internet website that is a violation of subdivision (f) of Section 51, the entity shall not be liable for those damages if the entity establishes, as an affirmative defense to the claim, that all of the following apply:
(A) The entity identified the specific accessibility barrier in a digital accessibility report posted on the accessibility page, described in subparagraph (H), of its internet website.
(B) Before the date when the entity identified the specific accessibility barrier pursuant to subparagraph (A), both of the following were true:
(i) A complaint had not been filed against the entity alleging the specific accessibility barrier identified in the digital accessibility report and seeking damages under subdivision (a) of Section 52 or Section 54.3.
(ii) The entity had not been notified that a user of the internet website intended to file a complaint described in clause (i) or otherwise make a claim for damages, including through structured negotiation or other nonjudicial, nongovernmental process, against the entity on the basis of the specific accessibility barrier identified in the digital accessibility report.
(C) Within 90 days of identifying a specific accessibility barrier in a digital accessibility report on the accessibility page, described in subparagraph (H), of its internet website, the entity remediated the specific accessibility barrier and updated its accessibility page to reflect the fact and date of the remediation of that specific accessibility barrier.
(D) The entity reasonably believes that the entity’s internet website is accessible.
(E) The entity uses automated and manual testing mechanisms to regularly monitor the internet website to ensure that the internet website is accessible, and the entity remediates any specific accessibility barrier that it identifies.
(F) (i) The entity has posted on its accessibility page described in subparagraph (H) its policy and general practices for ensuring that the entity’s internet website is accessible, including the frequency of reviewing or monitoring and testing content on the internet website.
(ii) The post described in clause (i) specifies the extent to which the entity relies on manual testing by users with disabilities and the extent to which the entity uses automated testing mechanisms.
(G) The entity ensures that if a user of the internet website is required to utilize either a link to third-party content, or a resource developed or controlled by a third party, in order to access, view, utilize, conduct transactions, or interact with the entity or the entity’s goods, services, or presentations via the internet, that the required third-party content or resource is accessible.
(H) The entity constructed an accessibility page labeled “accessibility” that is displayed and linked to from the primary domain directory and home page of its internet website and used the term “accessibility” for any linked text or text descriptions leading to that page, and all of the following criteria are satisfied:
(i) The accessibility page and all content available on that page conformed to the internet website accessibility standard when created and continues to conform to the standard whenever it is updated.
(ii) The accessibility page contains the following statement:
“On this page, you can download our Digital Accessibility Report. The Digital Accessibility Report has information about specific accessibility barriers that we know about on our website or app, along with the date by which we expect each barrier to be fixed. We will update the Digital Accessibility Report any time that a barrier listed in the report is fixed.
We may not be liable for certain kinds of damages under California law if a specific accessibility barrier is listed on our Digital Accessibility Report, and we fix that specific accessibility barrier within 90 days of that listing, unless you have filed a lawsuit about that specific accessibility barrier or told us that you intended to make a claim for damages about that specific accessibility barrier before we list it in our Digital Accessibility Report. If we do not fix a specific accessibility barrier within 90 days of the barrier being listed in our Digital Accessibility Report, we will not have protection from damages. For more information about the scope of our protection from damages, you can look at Section 55.565 of the California Civil Code. You can download our Digital Accessibility Report here [link to digital accessibility report].
(iii) (I) If the entity restricts access to the digital accessibility report, the entity shall provide access to the report to a requester within 10 days of receiving a request for the report.
(II) If the entity’s digital accessibility report is protected from public view, the entity shall add the following statement immediately following the statement in clause (ii):
“When you download this file, you will not be able to read it right away because you will need a password. You can request a password by emailing us at [insert email address], and we will send you the password within 10 days of receiving your request. Once you have the password, you will be able to look at the information in the Digital Accessibility Report.”
(I) On the accessibility page described in subparagraph (H), the entity provides a process for users of the internet website, including users with disabilities, to contact the entity to do both of the following:
(i) Obtain assistance with the internet website or to otherwise access, view, utilize, or conduct transactions with respect to the entity or the entity’s goods, services, or presentations.
(ii) Report specific accessibility barriers the users encounter on the internet website.
(J) The entity’s process for a user of the internet website to report a specific accessibility barrier the user encounters on the internet website described in clause (ii) of subparagraph (I) shall satisfy all of the following criteria:
(i) The entity reviews each report within five business days in order to determine whether it identifies a specific accessibility barrier.
(ii) The entity responds to the person making the report within 48 hours of receiving the report by acknowledging its receipt and providing a copy of the report.
(iii) No later than 90 days after the date of the submission of a report, the entity remediates each specific accessibility barrier and notifies the reporting party of its determination and remediation, as applicable.
(iv) The entity retains all records related to each report for at least three years after the date on which the report is submitted to the entity.
(2) An entity shall not claim the affirmative defense specified in paragraph (1) for a specific accessibility barrier that previously was identified by the entity in a digital accessibility report or that is so similar to a previously identified specific accessibility barrier that it has the same effect on a user as the previously identified specific accessibility barrier.
(3) After qualifying for the affirmative defense described in paragraph (1) as applicable to a specific accessibility barrier identified and remediated pursuant to this subdivision, the entity shall not make any additional alteration to the identifiable location on its internet website where the specific accessibility barrier was remediated if the alteration would create a new specific accessibility barrier. If the entity does so, it shall identify the new specific accessibility barrier in a new digital accessibility report and meet all of the requirements of paragraph (1) in order to qualify for the affirmative defense described in paragraph (1) as applicable to that newly created specific accessibility barrier.

(3)

(4) A defendant who qualifies for the presumption affirmative defense set forth in paragraph (1) is entitled to seek a court stay and early evaluation conference, as described in Section 55.54.

(4)

(5) The Judicial Council may adopt a form, or modify its existing forms, to implement this section. Before the Judicial Council promulgates a modified form, an entity covered by this part and served with an action regarding an internet website may use or adapt the existing form implementing Section 55.54.

(d)

(e) This section does not do any of the following:
(1) Limit the rights and remedies available to 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 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 internet 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 if the presumption established in paragraph (1) of subdivision (c) does not apply or if a plaintiff does not seek statutory damages.

(5)(A)Subject to subparagraph (B), require an entity to conform to the internet website-related accessibility standard or impose liability upon the entity for the inaccessibility of an internet website or resource that is accessed by any links that navigate the user from the entity’s internet website to a third-party internet website.

(B)An entity shall comply with both of the following:

(i)An entity shall not unduly rely on links to third-party resources as a means of evading its responsibility to provide an internet website that provides equally effective communication and facilitates 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 a person with a disability.

(ii)If a user is required, in order to access, view, utilize, conduct transactions with respect to, or in any other way interact with the business of the entity or the entity’s goods, services, or presentations via the internet, to utilize a link to third-party content, the entity shall ensure that the third-party content complies with the internet website-related accessibility standard.

(6)

(4) 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.
(5) Affect whether a defendant may assert defenses that may otherwise be applicable, including, but not limited to, a defense that the plaintiff does not have standing to bring the claim or that remediation of an accessibility barrier would be an undue burden.
(6) Impose liability on a distributor of video programming for a specific accessibility barrier with respect to the closed captioning or audio description of the video programming if all of the following apply:
(A) The video programming is subject to the 21st Century Communications and Video Accessibility Act of 2010 (Public Law 111-260) and the implementing Federal Communications Commission regulations.
(B) The video programming, including the closed captioning and audio description of the video programming, complies with the accessibility requirements of the 21st Century Communications and Video Accessibility Act of 2010 (Public Law 111-260) and the implementing Federal Communications Commission regulations.
(C) Individuals have the right to obtain a decision from the Enforcement Bureau of the Federal Communications Commission regarding the accessibility of the video programming, including the closed captioning and audio description of the video programming.

(e)

(f) For purposes of this section:

(1)“Conform” means that the entity’s internet website, taking into account the variety of conforming implementations, meets the criteria specified by the applicable internet website-related accessibility standard. 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 if the entity’s internet website meets all of the Success Criteria set forth in the standard, except if conformance to the standard is either not necessary or not possible due to the nature of the data sought to be presented on the internet website, and any instance of nonconformance does not impact the ability of a person with a disability to acquire information, engage in interactions, and enjoy the services of the entity’s internet website with an ease of use and level of privacy that is substantially equivalent to the experience of other users who are not persons with a disability.

(1) “Accessibility” means the quality of an internet website being accessible and useable, particularly to people with disabilities.
(2) “Accessible” means that an internet website is usable because it provides equally effective communication and facilitates full and equal enjoyment of the entity’s goods and services such that individuals with disabilities can do all of the following with substantially equivalent timeliness, privacy, independence, and ease of use as individuals without disabilities:
(A) Access the same information as individuals without disabilities.
(B) Engage in the same interactions as individuals without disabilities.
(C) Conduct the same transactions as individuals without disabilities.
(D) Otherwise participate in or benefit from the same services, programs, and activities as individuals without disabilities.
(3) “Conform” means, with respect to an internet website, to become accessible and, taking into account the variety of possible implementations, to meet the criteria specified by the applicable internet website accessibility standard, except if conforming to the standard is not necessary, or not possible, due to the nature of the data sought to be presented on the internet website or the lack of conformity with the internet website accessibility standard has such a minimal impact on a user of the internet website that it would not affect the accessibility of the internet website.
(4) (A) “Digital accessibility report” means a report that contains all of the following information in an accessible, nonproprietary tabular format about a specific accessibility barrier identified in the report:
(i) The identifiable location on the internet website where a user of the internet website would encounter the specific accessibility barrier and the function or component of the internet website at that location.
(ii) A short description of the specific accessibility barrier and how it affects the ability of a user, particularly a user who is a person with a disability, to access or use the internet website and, if applicable, the provisions and success criteria of the internet website accessibility standard to which the location, function, or component of the internet website fails to conform.
(iii) The names of either the entity or resource service provider that the entity believes to be responsible for the specific accessibility barrier or a list of all resource providers who contributed to or developed the inaccessible content identified in the report.
(iv) The date when the digital accessibility report about the specific accessibility barrier is first displayed on the entity’s accessibility page.
(v) The date when the specific accessibility barrier is expected to be remediated that is within 90 days of the violation first being displayed on the entity’s accessibility page.
(vi) Upon remediation of the specific accessibility barrier, the date when the specific accessibility barrier was remediated.

(2)

(5) “Entity” means a business establishment that is open to the public, a public place, or a place of public accommodation or any other business or place that is subject to the provisions of Sections 51, 54, or 54.1.

(3)

(6) “Internet website” includes all internet web-based technology, including, but not limited to, a mobile site or application, or an app, that can be accessed by a mobile device or other electronic device.

(4)

(7) “Internet website-related accessibility standard” means the Web Content Accessibility Guidelines (WCAG) 2.1 2.2 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 a difference or conflict between the applicable standards for internet websites under WCAG 2.1 2.2 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, unless a more stringent update, revision, or replacement to 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 United States Architectural and Transportation Barriers Compliance Board after the date of the enactment of this section, in which case, that final rule federal law, the more stringent standard shall apply to this section.

(5)“Professional reviewer” means an expert in internet website design and accessibility who has a professional certificate in internet website accessibility issued by the World Wide Web Consortium (W3C), a certificate as a Certified Professional in Web Accessibility (CPWA) issued by the International Association of Accessibility Professionals (IAAP), or a certification issued by another source of professional training for front-end internet website developers with criteria for issuance that are equivalent to, or higher than, the requirements for the issuance of a CPWA certificate.

(8) “Resource service provider” has the same meaning as defined in Section 55.566.
(9) “Specific accessibility barrier” means the specific aspect of an internet website’s content design, functionality, or behavior that causes the internet website to be not accessible to users of the website, particularly users who are people with disabilities.

(f)

(g) This section applies to any civil action filed on or after January 1, 2024. 2025.

SEC. 3.

 Section 55.566 is added to the Civil Code, to read:

55.566.
 (a) It is unlawful for a resource service provider, in exchange for money or any other form of remuneration, to intentionally, negligently, recklessly, or knowingly do either any of the following:
(1) Intentionally, negligently, recklessly, or knowingly construct, Construct, license, distribute, or maintain for online use an internet website that fails to provide equally effective communication or fails to 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 a person with a disability. is not accessible.
(2) Construct, license, distribute, or maintain for online use any resource or part of an internet website that, when used by the entity in accordance with any instructions provided by the resource provider, causes an entity’s internet website to be inaccessible.

(2)Intentionally, negligently, knowingly, or recklessly make

(3) Make a false representation of any of the following:

(A)An internet website provides equally effective communication and facilitates 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 a person with a disability.

(B)An internet website qualifies for the certification described in subdivision (c) of Section 55.565.

(C)The resource provider is a professional reviewer or otherwise qualified to assess the accessibility of an internet website.

(A) An internet website is accessible or conforms to the internet website accessibility standard.
(B) An internet website qualifies for the affirmative defense described in subdivision (d) of Section 55.565.
(C) The resource service provider is qualified to assess the accessibility of an internet website.
(D) A specific accessibility barrier has been remediated.
(E) A digital accessibility report is true and accurate.
(b) The following parties may bring a civil action pursuant to subdivision (a): for a violation of this section:
(1) (A) A person (i) An individual or entity that pays, compensates, or contracts with, 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 a person with a disability. that is accessible who is injured as a result of the defendant’s violation of subdivision (a) and reasonably relied upon the resource provider to ensure that the internet website, or a part of the internet website, is accessible.
(ii) For purposes of this subparagraph, an individual’s or entity’s reliance is not reasonable if a resource service provider, before the individual or entity is served with a complaint alleging a violation of this section or being notified that a user of the entity’s internet website intends to file such a complaint or otherwise make a claim for damages, including through structured negotiation or other nonjudicial, nongovernmental process, did both of the following:
(I) Disclosed in writing to the individual or entity all known specific accessibility barriers on the entity’s internet website.
(II) Described in writing to the individual or entity either of the following, as applicable:
(ia) If the resource service provider had the ability to remediate a specific accessibility barrier, how each specific accessibility barrier identified by the resource provider could be remediated, including by providing an estimate for the cost and time required for that remediation if the resource provider was able to perform the remediation or a referral to a third party who was able to perform the remediation, as applicable.
(ib) If the resource service provider did not have the ability to remediate a specific accessibility barrier, an explanation for why the resource service provider was unable to remediate the specific barrier, including as a result of a specific accessibility barrier that was created by a third party’s resource that the resource service provider did not control and was unable to modify.
(B) A 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 and costs 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 internet website, and all costs of bringing their internet website into conformance to the internet website-related accessibility standard.
(2) The Attorney General, the Civil Rights Department, or a district attorney, county counsel, or city attorney to obtain the following:
(A) Injunctive or declaratory relief.
(B) Attorney’s fees and costs.
(3) (A) A person harmed as a result of a violation of this section if the resource service provider caused the same specific accessibility barrier on multiple internet websites or caused specific accessibility barriers on multiple internet websites that are so similar that they have the same effect on a user of the internet websites. If the person is a prevailing plaintiff, the person may obtain both of the following:
(i) Injunctive or declaratory relief.
(ii) Attorney’s fees and costs.
(B) For purposes of this paragraph, “person” means any of the following:
(i) An individual with a disability that is harmed as a result of a violation of this section.
(ii) An organization that is comprised of, or that represents, individuals with disabilities, at least one of which was harmed as a result of a violation of this section.
(iii) An organization that is injured by a violation of this section due to diversion of resources or frustration of purpose.
(C) For purposes of this paragraph, a person is a “prevailing plaintiff” if the person obtains a judgment in a civil action pursuant to this section or if that action is a catalyst for, or otherwise results in, the remediation of one or more specific accessibility barriers or other violations of this section while the action is pending resolution.
(c) A (1) Subject to paragraph (2), a provision within a contract between a person an individual or entity and a resource service provider that seeks to waive liability under this 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) (1) of subdivision (b), is void as a matter of public policy and subject to subdivision (c) of Section 51.7.
(2) A contract or other agreement, including a settlement of claims under subdivision (a) or subdivision (a) of Section 55.566, between a person or entity and a resource provider may be valid and enforceable if any of the following apply:
(A) The entity is a large entity.
(B) The contract or other agreement expressly does both of the following:
(i) Obligates an entity to remediate any accessibility barrier corresponding to the released claim.
(ii) Provides the releasor a right to enforce this obligation.
(d) This section does not limit or alter the application of other laws, including, but not limited to, Sections 51, 54, 54.1, and 55, 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.
(e) (1) For purposes of this section, the following terms have the same meanings as defined in Section 55.565:
(A) “Accessibility.”
(B) “Accessible.”

(A)

(C) “Conform.”
(D) “Digital accessibility report.”

(B)

(E) “Entity.”

(C)

(F) “Internet website.”

(D)

(G) “Internet website-related website accessibility standard.”

(E)“Professional reviewer.”

(H) “Specific accessibility barrier.”
(2) For purposes of this section, “large entity” means an entity that meets all of the following criteria:
(A) The entity employs more than 50 full-time employees.
(B) The entity earns more than ten million dollars ($10,000,000) in annual revenue, and more than 50 percent of its annual revenue is generated by sales conducted by means of its internet website.
(C) The entity is publicly traded on a stock exchange.

(2)

(3) (A) 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.
(B) “Resource service provider” does not mean either of the following:
(i) A person or entity that provides hosting or hardware support to an internet website, but does not design, construct, or control the internet website, or resource to be used within or in conjunction with an internet website, in any manner that affects the ability of the internet website or resource to provide equally effective communication and facilitates full and equal enjoyment of an entity’s goods and services to all members of the public, including any member of the public who is a person with a disability.
(ii) An individual who is hired by a resource service provider, but does not have a contract directly with the entity who owns the internet website, including a manual accessibility tester.
(f) This section does not 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 internet 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 if an internet website does not conform to the internet website-related website accessibility standard.
(5) (A)Subject to subparagraph (B), require Require an entity to conform to the internet website-related website accessibility standard if the internet website is otherwise accessible or impose liability upon the entity for the inaccessibility of an a specific accessibility barrier on a third-party’s internet website or resource that is accessed by any links that navigate the user from the entity’s internet website to a the third-party internet website. website if a user of the internet website is not required to utilize the third-party internet website in order to access, view, utilize, conduct transactions, or interact with the entity or the entity’s goods, services, or presentations via the internet.

(B)An entity shall comply with both of the following:

(i)An entity shall not unduly rely on links to third-party resources as a means of evading its responsibility to provide an internet website that provides equally effective communication or facilitates 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 a person with a disability.

(ii)If a user is required, in order to access, view, utilize, conduct transactions with respect to, or in any other way interact with the business of the entity or the entity’s goods, services, or presentations via the internet, to utilize a link to third-party content, the entity shall ensure that the third-party content complies with 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.
(7) Establish liability under subdivision (a) if a resource service provider establishes that, after the date when the resource service provider constructed, licensed, distributed, or maintained for online use an internet website or resource to be used within, or in conjunction with, an internet website, or issued the certification described in subdivision (c) of Section 55.565, an entity other than the resource service provider, without the knowledge or permission of the resource service provider, altered the internet website or resource in a manner that directly resulted in the internet website or resource no longer providing equally effective communication and facilitating 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 a person with a disability. does either of the following:
(A) Establishes that, after the date when the resource service provider constructed, licensed, distributed, or maintained for online use an internet website or resource to be used within, or in conjunction with, an internet website that is accessible, an entity other than the resource service provider, without the knowledge or permission of the resource service provider, altered the internet website or resource in a manner that directly resulted in the internet website or resource no longer being accessible.
(B) (i) Notifies the entity that a resource the resource service provider has constructed, licensed, or distributed to the entity is responsible for causing a specific accessibility barrier on the entity’s internet website and provides the entity with an updated resource to remediate the specific accessibility barrier on the entity’s internet website.
(ii) This subparagraph does not apply if the notification by the resource provider occurs on or after the date on which either of the following occurs:
(I) The entity is served with a complaint alleging a violation of Section 55.565 or any other claim for damages alleging that the entity’s internet website is not accessible because of the specific accessibility barrier identified in the resource service provider’s notice.
(II) The entity is notified that a user of the entity’s internet website intends to file a complaint described in subclause (I) or otherwise make a claim for damages, including through structured negotiation or other nonjudicial, nongovernmental process, on the basis that the entity’s internet website is not accessible because of the specific accessibility barrier identified in the resource service provider’s notice.