AudioEye is one of many vendors that claims its accessibility overlay product can make your site “accessible”. Like the other overlay vendors, AudioEye’s overlay does not. If you have been lead to believe that AudioEye’s overlay will protect you from complaints, whether via AudioEye advertising or sales efforts, then it is important to know that may not be true.
In fact, using AudioEye’s overlay can add demonstrable WCAG failures and in some cases have no impact for users. I outline a few examples in this post. It is not an exhaustive collection, however. As with my other posts about overlays, I have no interest in providing free QA.
Human Testing
It is important to note that AudioEye also offers human testing and remediation. AudioEye is adamant about this point, going so far as to call it out in its Cease & Desist letter to me, while distancing itself from its overlay (a term it considers pejorative).
This point is bolstered by AudioEye’s recent acquisition of Bureau of Internet Accessibility (the company that owns a trademark on a11y, registration #4824150 per USPTO search) and the announced launch of its A11iance Team (pronounced A eleven eye-ance by JAWS). My only experience with this team was when I pointed out the following code on the accessibility statement of a site that AudioEye implied had been tested with AudioEye’s manual testers:
<span class="feedback-link" data-ae-client-feedback-link="true" onclick="…">
<u>please submit your feedback.</u>
</span>
For context, that code fails WCAG Success Criterion 2.1.1 Keyboard because it cannot be operated via keyboard. AudioEye’s attorneys acknowledged this to me.
One of AudioEye’s manual testers pointed out there were other places to submit feedback, but assured me the control was fixed, which was done with this still-2.1.1-failing code:
<a class="feedback-link" data-ae-client-feedback-link="true" onclick="…">
<u>please submit your feedback.</u>
</a>
This has been my only interaction with AudioEye’s manual testers, which comprises two-thirds of the currently listed A11iance team.
Overlay
My concern with AudioEye has consistently been its overlay product. That AudioEye considers the word pejorative is news to me, but it is the word that industry settled on as a whole (I used the term “add-on” back in 2015 when I first raised concerns about these products).
Legal Activity
I am not a bird lawyer. None of this is legal advice.
In 2020, AudioEye sued accessiBe for infringing AudioEye’s patents titled Systems, Devices, and Methods for Automated and Programmatic Creation and Deployment of Remediations to Non-Compliant Web Pages or User Interfaces, Modular Systems and Methods for Selectively Enabling Cloud-Based Assistive Technologies, and Systems, Devices, and Methods for Facilitating Website Remediation and Promoting Assistive Technologies. Collectively or individually, these are often commonly referred to as an overlay product.
In December 2021, accessiBe tried to move the case to New York and in the court order more detail on the complaint by AudioEye was revealed:
AudioEye brought this suit in the Western District of Texas against accessiBe, asserting patent infringement claims, Lanham Act claims of false advertising and product disparagement, and New York state law claims of product disparagement, slander/defamation, tortious interference with prospective economic advantage, deceptive business practices, and unjust enrichment. AudioEye’s complaint alleges, among other things, that accessiBe made false, misleading, and disparaging statements regarding AudioEye’s products and services to two companies located in the Western District of New York and an unnamed ‘consumer in New York.’
As far as I know, this case has not been resolved. A LexisNexis subscription is expensive.
Despite working for a long time with AudioEye for website remediation, ADP, the human resources management software and resources giant, was sued due to consistent failures in AudioEye services and products to be used by blind people.
[…]
However, ADP relied on AudioEye to implement the correct accessibility adjustments that would make their products accessible to screen reader users. Unfortunately, the lawsuit clarified that AudioEye’s software did not ensure accessibility for these people.
The article goes on to cite example issues, such as form fields that are not correctly conveyed, visual-only information, lack of programmatic state, and insufficient or absent accessible names. The implication so far has been that AudioEye’s overlay product was not fit for purpose, but this statement from the settlement agreement drives that point home:
For the purpose of this Agreement, “overlay” solutions such as those currently provided by companies such as AudioEye and AccessiBe will not suffice to achieve Accessibility.
Note the use of the word overlay in the settlement agreement. I am not sure if that is pejorative or not, but it seems fair to keep using that word given its use in legal filings. To AudioEye’s credit, or ADP’s misfortune depending on your perspective, AudioEye asserts it continues to work with ADP.
In April of this year (2022), AudioEye threatened me with a cease & desist letter for what it claimed was defamation or tortious interference-related actions. You can read my response. The recurring theme from AudioEye’s lawsuit against accessiBe is defamation and tortious actions.
AudioEye’s Twitter account is not prolific, but it does make some assertions about how you can be protected from lawsuits on day one. Here are some example tweets with the implied promises emphasized.
Don't wait until an accessibility lawsuit comes your way.
I am unaware of any reputable accessibility consultancy who has guaranteed to resolve your accessibility risks on day one. Broadly, accessibility is an ongoing process, which is why those claims are generally only used by overlay vendors selling quick-fix products. AudioEye’s own attorneys seem to agree:
…as any accessibility expert knows, the process of achieving maximum accessibility is iterative—it contemplates audits, troubleshooting, and deeper fixes.
I could talk about how marketing comes from actions as much as words, and reference specific actions from AudioEye that demonstrate its ability and stewardship of accessible experiences, but then it would devolve into me being petty and embedding examples of AudioEye failing to include alternative text on images in its tweets, something its overlay product can do nothing to fix.
Separately from AudioEye’s Twitter presence, AudioEye has made strong claims elsewhere as well. Overlay False Claims, a site that still exists despite AudioEye insisting to me the site mis-represents its client list, has tracked some examples of search engine ads:
The recurring theme is the AudioEye’s day one implication of compliance.
If we loop back around to the AudioEye’s frustration at the term “overlay”, something about which AudioEye felt strongly enough to argue “toolbars” are not overlays but not strongly enough to set up a 301 redirect to its new location, it is no surprise it would purge uses of the term from companies it buys up. As I mentioned earlier in this post, AudioEye acquired Bureau of Internet Accessibility. Bureau of Internet Accessibility posted in October, Why Accessibility Overlays On Your Website Can Make Things Worse. That post is now gone.
If accessibility could be achieved in 24 hours, the companies that specialize in accessibility would turn projects around in 24 hours. Why wouldn’t they?
If automated solutions could find and fix every accessibility issue, the companies that specialize in accessibility would save themselves a lot of time and use them. Why wouldn’t they?
If the intended experience of a website could be automatically detected for an optimized assistive technology experience, the companies that specialize in assistive technology would do that for their users. Why wouldn’t they?
Remediation
The overlay product offers a series of controls that ostensibly let the user modify the display of the underlying page.
The following videos represent a single run-through of some of the AudioEye overlay features labeled “Visual Toolkit”. Which implies they will all have a visual effect. I broke it up into multiple videos.
I chose the AudioEye-generated accessibility statement of one of its customers on the premise that this should represent AudioEye’s best work. I did my best to redact the site. The only reason I am aware of the site is because an AudioEye sock-puppet Twitter account was promoting it.
The button is there, but will not launch the AudioEye overlay. No script errors (at least no obvious ones). AudioEye’s customer name, injected by script, is absent on the page.About a half hour and two clicks later, the overlay launched. Which provided an opportunity to see the tool-tip-like message that does not persist when trying to move the cursor into it. That is a WCAG SC 1.4.13 error.The Focus control seems to have no impact on the focus styles of links or buttons in the page content. Whether active or not, the focus style appears to be a black outline.Activating Cursor seems to have no effect. Neither for the default mouse cursor nor the pointer.The Highlight button cycles among headings, links, buttons, and all of them at once. It conveys which is highlighted by changing its accessible name. In the video I confirm each element type in the page and show nothing happens.Text Size also cycles through three options, also by changing its accessible name. And it also has no effect on the page content. However, it does scale the navigation and footer.Spacing only affects the letter spacing in the navigation and footer, having no effect on the page content. The page content for the accessibility statement. Which AudioEye provides.Font behaves as Text Size, cycling through three options, also by changing its accessible name. It also has no effect on the page content, only the navigation and footer. One of the fonts is a dyslexia-specific typeface, which perform no better than any other.Image has no effect on the single image in the page content. It is not clear what its purpose is.
Users
Users, by which I mean humans, do not like AudioEye’s solution. More broadly, they do not like any overlay product. Because they do not work.
In the interests of full disclosure, I was interviewed for this article.
But it’s not working out that way. Users like Mr. Perdue say the software offers little help, and some of the clients that use AudioEye, accessiBe and UserWay are facing legal action anyway. Last year, more than 400 companies with an accessibility widget or overlay on their website were sued over accessibility, according to data collected by a digital accessibility provider.
“I’ve not yet found a single one that makes my life better,” said Mr. Perdue, 38, who lives in Queens. He added, “I spend more time working around these overlays than I actually do navigating the website.”
[…]
Mr. Moore said he had experienced trouble completing tasks like buying a laptop, claiming his employee benefits, booking transportation and completing banking transactions on websites that had overlays.
“If the object is to make it more accessible, and you can’t fix the basic issues, what value are you adding?” he said.
AudioEye’s chief executive says in the article that his company recommends its customers use accessibility experts to fix errors the overlay cannot. Bear in mind AudioEye’s advertising guaranteeing day one compliance as well as its own experts’ inability to fix even the most minor technical issue, as cited above.
Market Performance
I am not a financial analyst. I should never give financial advice, and nobody should ever listen to it. I can, however, read a chart. I can see that on February 12, 2021 AudioEye (AEYE) had a common stock value of $42.25. On April 5, 2022 when AudioEye sent me its cease & desist, it had a value of $6.37, cratering at $3.50 on May 17, 2022 (which maybe lead to Zaks recommending folks sell).
To its credit, AudioEye stock was back up to $6.50 by February 13, 2023, two years after its high (after bottoming out at $3.49 on December 29, 2022) but still down 85%.
What does its loss of market value in just one year (from which it has not recovered over the following year) mean for the scope of this post? Perhaps not much, other than a reminder that AudioEye, like most businesses, needs to show investors it can make money. And then do so. AudioEye may be under pressure to show revenue by assorted problematic marketing tactics, including over-promising and under-delivering. For the lawyers reading this, this is obviously speculation on my part.
Sadly, other than the public marketing tactics I have cited, I have no insight into its direct marketing messages. For example, I am curious how AudioEye got its name into this Orange County bid: Bid #IFB 017-2358301-OCIT-TS – AudioEye Web Content Accessibility and Compliance (three year contract). I am sure it wasn’t by arguing that using AudioEye would lend credibility to the developers.
Class Action Settlement
Speaking of financial challenges, in May 2017 AudioEye opted to settle a class action (which does not mean it is guilty) on behalf of all
persons who purchased or otherwise acquired any common stock of AudioEye
during the period from May 14, 2014 through and including April 1, 2015, and who were allegedly damaged thereby (the ‘Settlement Class’), as recounted in the U.S. District Court of Arizona order and final judgment.
On July 1, 2015, the Honorable Judge David C. Bury consolidated the Nykaza Action and the Saczawa Action under the Master File and caption In re AudioEye, Inc. Sec. Litig., No. CV-15-00163-TUC-DCB.
[…]
On November 30, 2015, the Lead Plaintiffs filed the operative Consolidated Amended Complaint alleging against all Defendants: (Count 1) violations of Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”); and (Count 2) violations of Section 20(a) of the Exchange Act.
The financial challenge here was that AudioEye spent $1.5 million USD to settle a class action securities fraud suit that was likely the outcome of actions by its CFO and its Treasurer/founder. Not being an investor, I cannot say if that put additional pressure on the firm nor do I have insight into how it updated its financial controls.
Wrap-up
I want to stress that I am not trying to sell my services here. AudioEye and I do not compete. I have no overlay product. I do not do remediation.
Do not hire me if you think AudioEye is a good fit for you. Probably don’t waste either of our time contacting me, in fact.
I focus on outcomes for users, not conformance. I focus on empowering teams, not setting up recurring monthly fees. I focus on making organizations self-sustaining, not helping them avoid lawsuits.
What I have tried to show here instead is a pattern of problematic claims, technical failures, possible motivations on the part of AudioEye, and the ongoing evidence from users that overlays, including AudioEye’s, do not work.
As of today, 3 January 2024, AudioEye has dismissed its lawsuit against me as part of a settlement agreement. I discuss it and my belief that it was a SLAPP suit in the post #AudioEye Has Dropped Its Suit Against Me.
I am sharing this update as a comment because I want to leave this original post as-is so you can see what triggered the suit (not because I am required to as part of any agreement). Breaking from my normal process of updating my posts, I will probably continue to leave updates as comments.
Remember that AudioEye’s first response was a SLAPP suit.
I appreciate that AudioEye continues to revise the history of the ADP settlement, but I encourage you to read the legal briefs I link above.
Finally, AudioEye’s stock price was $4.93 at the close of trading yesterday. On 8 March 2023, the day AudioEye served me, its stock price was $6.00. On 12 May 2023, the day I publicized the lawsuit, its stock price was $6.11. There is no message here, I just find it interesting to track.
I found that the AudioEye CEO / founder is also a founder / exec at a VR game studio. So I decided to see if it uses AudioEye, and it does. Activating the AudioEye overlay does not appear to make any fixes to the evident WCAG violations. So I tried the feature labeled “Animation” to see if it would stop the looping auto-playing video.
Loading FirstContactEnt.com in a Chrome incognito window. When it loads, a full screen background video starts playing with no control to pause nor stop it. After dismissing the cookie consent which was hiding an accessibility icon, I trigger the AudioEye overlay. I click on “Animation” in the “Visual Toolkit” and then watch the background video continue to play. I click it a few more times but the video continues to play.
Legal disclaimer: This unedited, undoctored video is only my opinion.
Recent news for AudioEye is adding Mike Paciello to its team as its Chief Accessibility Officer. If this feels familiar, remember that accessiBe hired Michael Hingson to be its Chief Vision Officer in an effort at reputation washing after its own overlay was roasted by the blind community.
Mike is a friend. I have worked with Mike. Mike even name-checked me in his CSUNATC 2023 keynote. Mike did not tell me about this move until after the public announcement, less than a month after AudioEye’s SLAPP against me settled. However, Mike has tried to bridge the gap between real practitioners and venture-funded tooling efforts (overlays) for years so I was not nearly as surprised as many others were.
The community is mixed in its reaction, but for many this news is too much:
Renowned lung cancer specialist joins tobacco company. At least that’s what it feels like to me.
If failing to assume responsibility, overlays companies will never be a part of the accessibility community, but a stain on it.
But I have lost hope in so many people I’ve considered accessibility leaders over the years. […] If there is a quick buck to be made, it is made, often to the disadvantage of disabled people.
When respected accessibility people become overlay salesmen, it sticks a dagger in your back and you feel like you just got slapped in the face. Especially since an accessibility professional was sued and faced a SLAPP lawsuit from the very same company. You can congratulate the man, but can you congratulate and respect the decision?
Unfortunately, reputation washing works both ways. I’m afraid AudioEye is taking advantage of my friend and his earnest desire to improve outcomes for the disability community.
Photo of the CSUNATC 2024 program book (which is on glossy paper and bendy, hence the blur at the edges).
I saw this session at CSUNATC billed as a fireside chat, but with two AudioEye representatives (the first name is AudioEye’s CAO, despite what it says) and one of the founders of GAAD. Of course, I was reminded of the last conference to platform an overlay vendor and was disappointed it was opposite my session.
If you go to 28:16 in the Friday afternoon Fireside Chats, the host says, Next thing is coming up at 2:20. It’s The Future of Accessibility with AI, Fireside Chat with Mike Paciello from WebABLE, Joe Devon from GAAD, and Mase Graye from AudioEye. So tune into that at 2:20 here at the CSUNATC TV broadcast studio. It’s then followed by an hour of dead air.
I am disappointed CSUNATC chose to allow an overlay vendor, I am disappointed the affiliation one of the panelists has with an overlay vendor was hidden, and I am disappointed there is no acknowledgment nor explanation of what occurred. I am, however, happy the session did not happen. CSUNATC should never give a platform to bullies that sue practitioners (my opinion, though the evidence supports it).
[…] AudioEye’s Chief Accessibility Officer, reflects on the importance of trust, transparency, collaboration, and innovation in advancing accessibility — and shares three initiatives at AudioEye that live up to these ideals.
The trust and transparency assertion is interesting, given we know AudioEye has sued at least two practitioners to silence them. The other two assertions (collaboration and innovation), well, don’t seem to have been priorities for AudioEye before.
1. Continued Investment In Community Testing
[…] You need [people with disabilities] involved in the design and development of your products and services. And if something is already live and in the wild, you better make sure you have people with disabilities testing it and providing feedback on how it can be improved.
As I demonstrated above, AudioEye tried that (touted it, even), and it didn’t exactly pan out. It’s unclear how AudioEye will suddenly make that work just because its CAO is asserting it.
2. Rebranding the Visual Toolkit As a Web Personalization Tool
To help clear up any confusion, we’re in the midst of rebranding the Visual Toolkit [overlay] as a web personalization tool. We believe there are use cases (including the elderly and less experienced users) who want to be able to customize a website’s visual presentation to their individual needs or preferences without having to adjust their browser or display settings.
I wonder how many people paid for this overlay because it guaranteed compliance on day one. Are they entitled to a refund for that false claim?
3. Building for Accessibility With New Developer Tools
Since its founding in 2005, AudioEye has a long track record of innovation — and our new developer tools are the latest example of us getting ahead of the curve.
AudioEye has a longer track record of false claims, bullying, failing to deliver on its guarantees, oh, and securities fraud. I suggest you judge its latest promises by its past behavior.
I don’t think you can trust AudioEye. No matter how many people it pays to parrot its revisionist history — especially now that it tries to frame others’ overlays as worse while rebranding its own.
Financial Times has just published Blind internet users struggle with error-prone AI aids. While it incorrectly frames overlays as ‘AI’, that is partly a function of disingenuous marketing claims meant to cash in on the terms that both investers and customers are pouring money into. Regardless, I think the sub-head distills it very well:Unreliable software installed to comply with rules to help disabled people navigate online has prompted thousands of lawsuits.
The FT article notes global laws which require web sites are accessible to disabled users. Those laws prompted companies to look for quick fixes in the form of overlays (which we know are aggressively marketed with problematic guarantees).
However, those businesses that rely on accessibility code assistants and “overlays” — software that transforms a website so that it can be understood by assistive technologies — appear to have exposed themselves to more liabilities as the tools still need improving.
The article shows that accessiBe, AudioEye, EqualWeb, and UserWay each fail to remove testable errors, with accessiBe ranking worst. It even calls out AudioEye (second worst) has leaving one in seven sites with poor contrast.
It gives EqualWeb an opportunity to respond, where it unintentionally acknowledges how ineffective its overlay is:
Anat Cohen, vice-president of business development at EqualWeb, said the issue on Zara’s website was not related to the accessibility technology but “stems from the website’s structural design”.
It also gives UserWay an opportunity to respond:
Level Access, an accessibility provider, has just bought UserWay, an overlay maker. Its founder and chief executive Timothy Springer has addressed some of the criticisms of UserWay’s technology and has promised accuracy and transparency in Level Access marketing.
Note the promise is for Level Access marketing, but not UserWay marketing (which is retaining the UserWay brand and marketing efforts). Prior behavior suggests no positive changes forthcoming.
Again, the barest poking at claims and code show how accessibility overlays are broadly ineffective and primarily built on lies. Lies which have harmed, and continue to harm, users.
Lighthouse for the Blind v. ADP TotalSource (CA State Court) — filed Sept 2020; settled Oct 2021:
Class action against payroll processing and HR company
Used overlay for accessibility — didn’t work
Settlement requires accessibility fixes and prohibits use of overlays.
SLAPP suits:
AudioEye v Roselli: filed in 2023 in NY state court against digital accessibility expert who spoke out against AudioEye’s false claims that they could make inaccessible sites accessible through overlay.
Settled January 2024 and case dismissed.
See that phrase, didn’t work? AudioEye sued me for saying its overlay does not work. If you search that phrase in the suit (by Akin Gump Strauss Hauer & Feld LLP along with Buffalo-area firm Phillips Lytle LLP), you will see it 8 times. It seems that was a valid takeaway from the ADP settlement.
Separately, AudioEye’s CAO was at AccessU (but yet again listed under another company). After the legal update, people wanted to talk to me about the case but one person (no, I don’t remember who, go subpoena someone else) said they wanted to wait until the AudioEye executive had left the room. Others also expressed caution. AudioEye’s chilling effect was and still is, unfortunately, successful.
Specifically, a whistleblower has identified the company’s, Chief Executive Officer David Moradi and Executive Chairman Dr. Carr Bettis. While I typically do not name the employees of overlay companies, this is a very specific claim that warrants naming.
You might also recall that I pointed out First Contact as one of Moradi’s other businesses. It’s relevant because Moradi was also leaving fake reviews to boost its game, pressuring the same whistleblower to set up a VPN to do so (as the lawsuit alleges), which is why it’s relevant here. To quote the lawsuit for how AudioEye Chief Executive Officer David Moradi supposedly responded when the whistleblower resisted (this is a collection of them, they didn’t occur all at once):
Buddy, if you’re not going to help with this, maybe you won’t get your equity in First Contact, and maybe I won’t feel like supporting your health benefits or your role at AudioEye anymore.
I am the law, I have the best lawyers in the world, I will never be in trouble, Buddy. I’m worth $200 million, and you’re a f*cking employee at AudioEye working for me.
First, do these reviews [for First Contact], then I need you to help me get AudioEye’s stock up.
I will not support your healthcare and your salary, you mother**cker, earn your keep. You do what I say and when I say it. Respect your elders, mother**cker. You will do the reviews and you will do what I tell you to do with AudioEye’s stock. Do what I tell you and set it [the VPN] up now.
Understand that this release came from the law firm representing the whistleblower. However, given my personal experience with AudioEye (as the victim of a SLAPP), AudioEye’s willingness to file at least two SLAPPs against valid criticism, AudioEye’s previous securities fraud settlement, AudioEye’s constant reframing of its ADP settlement, its use of sock puppet accounts to boost itself, and my own observation above that AudioEye’s stock was down 85% at the time of writing, I am inclined to believe the bulk of this lawsuit’s claims.
Oh, besides the alleged poor behavior, there is this arguably more actionable statement in the release:
The lawsuit alleges that the stock manipulation scheme was initiated after Kovacs’ termination. AudioEye is trading approximately 400% higher than at any time in the last two years on substantially higher trading volume – substantially outpacing the performance of the S&P 500 and many industry peers. This irregularly high share price and volume are based on extremely limited publicly available information, suggesting a nefarious scheme is in play.
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