#AudioEye Has Dropped Its Suit Against Me

AudioEye has dropped its lawsuit against me as part of a settlement agreement. The specific legal details are at the end of this post.

Joint Statement

The Parties are AudioEye and me, and this is Parties’ joint statement about the settlement:

  • The Parties have agreed to resolve the litigation concerning Roselli’s past statements about AudioEye’s products and services.
  • The full, exact terms of the Agreement are confidential.
  • The Parties acknowledge that the statements included in AudioEye’s amended complaint were merely expressions of Roselli’s opinion. As the concept of opinion and fact exists in defamation law, Roselli’s statements were not statements of fact concerning AudioEye’s products and services.
  • Though Roselli has decades of experience in digital accessibility, Roselli does not have experience regarding the specific usage and functionality of AudioEye’s products and services, other than its “Visual Toolkit” or “toolbar.” His prior statements of opinion concerning AudioEye’s products and services were based only on AudioEye’s toolbar. Roselli is not and has never been (nor has he tried to become) an onboarded customer or client of AudioEye with full access to its products and services. Roselli and AudioEye have not previously entered into any contracts or agreements for AudioEye to provide Roselli with access to its products or services.
  • AudioEye constantly monitors its products and services and works with organizations to ensure its products meet the highest standards. As part of this settlement, and with the hopes of continuing to work toward digital accessibility, AudioEye has agreed to make a financial contribution of no less than $10,000 to National Federation for the Blind.

That is the entirety of what I have to say (and will say) about the terms of the settlement.

Impact, Abridged

What I will talk about is my views about having gone through this process. Of course, this settlement is a relief to me. Unfortunately, the lawsuit’s objective was partially successful. People were afraid to talk about AudioEye for fear of getting sued by AudioEye. People were afraid to participate in research for fear of getting sued by AudioEye:

People were, however, willing to publicly express their opinions about what they felt was a frivolous lawsuit. Here’s the President of the National Federation of the Blind:

Here’s Aral Balkan, who isn’t even in this space but wasn’t shy with his opinion:

There was also some blowback on IAAP for promoting AudioEye (a member) while folks were busy being angry about AudioEye suing me (not a member).

Originally I was going to share a lot of posts from folks with opinions on AudioEye’s lawsuit, but then this update could look like ego stroking. You can instead search assorted social media platforms at your leisure. Check the #AudioEye hashtag on Twitter or search for AudioEye on BlueSky or #AudioEye on any Mastodon instance or see how people responded to Lainey Feingold on LinkedIn. These are just the (somewhat) public channels.

SLAPP

That last link is a good transition to reference Lainey Feingold’s post New Low in the Accessibility “Industry:” Overlay Company Sues Globally-Recognized Accessibility Expert:

This lawsuit against Adrian Roselli impacts every person who cares about including disabled people in the digital world. It impacts all of us who speak, write, and advocate for digital accessibility that is fair, equitable, and ethical.

The lawsuit has what is known as a “chilling effect” (thus the image of ice cubes). I have personally experienced it, and I know others who have too. Who will be next? What type of conversation is off limits?

Colleen Gratzer covered it in her Design Domination podcast in the episode AudioEye versus Adrian Roselli: The SLAPP Heard Around the World.

Folks who either caught the news elsewhere or read the lawsuit itself broadly agreed this was a SLAPP suit, which stands for Strategic Lawsuit Against Public Participation.

Colleen’s video as an embed

My attorneys also firmly believed it was a SLAPP suit:

Apparently there is a #LitigationDisasterTourists hashtag and, if BlueSky ever honors hashtags, AudioEye’s lawsuit was tagged with it there.

Everybody Lost

Nearly every engagement I have had since I shared the lawsuit has been nothing but support for me and anger at AudioEye (some folks didn’t know about it). It makes sense the people who invited me to their events, offices, and homes would support me, so you can take that with a grain of salt.

Lost Focus

But statements of support took time away from broader conversations about improving outcomes for people. Instead of talking about a new tool, or discussing a bug in popular assistive technology, or having a dialog about improving an experience, many of us wasted time kvetching about this pig headed SLAPP litigation instead.

This absolutely impacted my own ability to be productive. My writing output dropped, my casual free help on the socials or in the A11y Slack shrunk, and even those meaningful hallway conversations were misdirected to this through no effort on my part.

Lost Voices

Early in the post I referenced someone who was afraid to be named in a research study. If you wade into the social media platforms, you will see other people worried about sharing their own experiences with broken tools as a result of this bullying tactic.

The (in my opinion) chilling effect of AudioEye’s SLAPP did more than shut me up, it silenced the users of overlays in general for fear of being open about their frustrations. I’m sure this impacted the members of AudioEye’s “A eleven eye-ance” team as well (I am speculating here).

Lost Revenue

I don’t know how much AudioEye spent in attorney fees. I know that firms like Akin Gump charge well above the $1,000 USD per hour range. Never mind all the time AudioEye executives spent discussing it, directing staff to track down all my grumpy posts, and generally watching for me to slip up. Imagine how that money could have gone back into its product or, better yet, the disability community.

I immediately stopped donations and sponsorships when I was sued. I needed to keep my community support budget for what could be an expensive fight (regardless of all the offers for financial help). No local meet-ups, no conferences, no events around the world got a cent from me (“around the world” is not hyperbole; I once sponsored an event in Hong Kong knowing I would not attend). I certainly have a lot less money than AudioEye to throw at the community, but I still gave my time and money where I could.

Lost Goodwill

AudioEye was often considered, and I had conceded in the past, the least bad of overlay vendors. While it had a history of hyperbolic claims, it had made some efforts to participate in the digital accessibility industry and even tone down some of those claims. I understand from recent industry conferences that AudioEye is no longer seen as least-bad.

In my case, I counted maybe three people (one commented on Lainey’s post) who felt I was being mean and that getting sued is what happens to people who are mean to multi-million dollar companies. So I guess there was some goodwill lost toward me as well.

Lost People

I discovered from this debacle that I have some sort of reputation. I mean, within the accessibility industry my name has some recognition. Within the broader web industry it turns out some folks also know who I am. Which is great for me in this situation.

It is absolutely terrible for others in the same — no, worse — situation. I got a bunch of support. But I believe it was at the expense of other people, and one person in particular comes to mind. Independent practitioner Julie Moynat is still in litigation with FACIL’iti since 2021.

FACIL’iti may be more aggressive in suing critics. Julie isn’t the only one being bullied by overlay vendor FACIL’iti. Koena lost its defense against FACIL’iti and Koena could use your help covering its costs and filing an appeal.

Please redirect any support you wanted to throw at me to Julie and/or Koena instead.

AudioEye has dismissed with prejudice its lawsuit against me. Essentially this means AudioEye cannot sue me again for the same content. I have embedded the dismissal action as an untagged PDF or you can grab the file directly.

If you are curious how this all started, read my opinion post #AudioEye Will Get You Sued. One positive outcome is that National Federation for the Blind is getting a $10,000 donation from AudioEye (so not everyone lost). Remember that the President of the National Federation of the Blind supported me in the Masto post I included above.

Interestingly, in late August AudioEye’s attorneys sent me a discovery document. While I am not a lawyer, essentially they demanded any communication I had with anyone at any time about anything related to AudioEye. They also demanded my entire work history, income, experience in digital accessibility, and education. On top of that, they wanted all communications with the people who provided me with affirmations and affidavits.

I thought this was a ploy to scare people, given the ongoing anti-SLAPP motion. Since I had been posting whatever AudioEye sent me, I felt AudioEye was using it as a tactic to continue to scare people from supporting me. As such, I did not share it. I am sharing it now as an embedded tagged PDF, which is also available directly (264kb PDF). The good news is that they had finally delivered an accessible document.

It turns out what I believed was a scare tactic designed to limit my support and continue to scare the industry into silence might have been no more than lawyerly incompetence – although, I suppose incompetence and scare tactics can be one and the same (this is my opinion, dear reader and Akin Gump Strauss Hauer & Feld LLP along with Phillips Lytle LLP, because I am not an attorney and have no expertise in this area).

New York Civil Practice Law and Rules (CPLR) Section 3211 (g)(3) addresses why this request was moot:

All discovery, pending hearings, and motions in the action shall be stayed upon the filing of a motion made pursuant to this section. […]

Remember that my attorney filed a Motion to Dismiss under New York’s anti-SLAPP statute (that is, 3211(g)). But even without the anti-SLAPP statute, it is basic procedure that any motion to dismiss stays disclosure, as noted in CPLR 3214 (b):

Stay of disclosure. Service of a notice of motion under rule 3211, 3212, or section 3213 stays disclosure until determination of the motion […]

Granted, it still could have been a scare tactic – again, incompetence and scare tactics can work together quite well. But it was one that cost AudioEye however many hours at whatever partner rate Akin Gump Strauss Hauer & Feld LLP charges (likely with time from a partner at Phillips Lytle LLP) and which would never be acted upon.

Incidentally, I cannot say enough positive things about Cohen Green PLLC, specifically Remy Green, who was my attorney through this debacle. If you find yourself being bullied with a SLAPP, probably call them.

Wrap-up

I appreciate the overwhelming support of the accessibility and disability communities. I am especially grateful to Norbert Rum, Rian Rietveld, Léonie Watson, Steve Faulkner, and Ian Hamilton for taking the time out of their other obligations on short notice and providing me with affidavits and affirmations. Lainey Feingold has been an incredible friend through all this.

As I said above, I can wholeheartedly recommend Cohen Green PLLC and Remy Green.

My other posts about AudioEye:

Other problematic overlay vendors:

Talks:

Tactics:

CAO Hire: 8 February 2024

Likely as a response to AudioEye’s SLAPP, 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, which was 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.

Unfortunately, some people cannot change their character and are doomed to repeat their mistakes, no matter how much you try to fix them. My fear is it is happening again, given the character of the company, the character of its current leadership, and the obviously bad PR it’s had over the last year as a result of the SLAPP.

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.

Talk References (Added 7 July 2024)

AudioEye’s SLAPP was mentioned at the 37th Chaos Communication Congress in December 2023.

YouTube: Rettet uns die KI? Casey Kreer.

It was also referenced at Accessibility NYC in October 2023.

YouTube: Digital Accessibility and Civil Rights – Lainey Feingold.

Jessica Chambers fom Silktide discussed it in a webinar in April 2024.

YouTube: One line of code can’t fix your website.

Glenda Sims, Deque CAO, cited it at least three times in her WebAIM conference talk in 2023.

YouTube: One line of code can’t fix your website.

8 Comments

Reply

First of all, I am happy even if the truth didn’t won. Big lawyer guns are never a good opponent…

Reading “Though Roselli has decades of experience in digital accessibility, Roselli does not have experience regarding the specific usage and functionality of AudioEye’s products and services, other than its “Visual Toolkit” or “toolbar.” His prior statements of opinion concerning AudioEye’s products and services were based only on AudioEye’s toolbar. Roselli is not and has never been (nor has he tried to become) an onboarded customer or client of AudioEye with full access to its products and services. Roselli and AudioEye have not previously entered into any contracts or agreements for AudioEye to provide Roselli with access to its products or services.” makes me think that we need to find overlay customer that got sued by people with disabilities to proove overlays aren’t working?

Or do they all get threathened to stay silent by some bullet proof terms of service?

Then we need to read and disect the terms of service and expose the ifs and buts to the public, I guess?

Reply

Thanks for being willing to speak up about this, even in the face of intimidation. I’m hopeful others will continue to push for a continued focus on real accessibility improvements, not fake one line solutions.

The timing of this post is crazy. The same day you posted Nielsen Norman Group published the results of a study on accessibility widgets and their results match what you’ve been saying: overlays are not helpful for actual screen reader users.

In response to Nicolaos Skimas. Reply

Nicolaos, that video collects the research from April 2023, Challenges for Screen-Reader Users on Mobile. While unlikely, I have to admit a tiny part of me wonders if the long delay between the article and the video was a function of worries about litigious overlay vendors, and the outcome here made them more comfortable.

And thank you, I too hope that others will continue to push for real outcomes for users.

Reply

Thank you for all you do, Adrian, and for speaking out. I am so glad to hear this news.

Reply

Your recent situation is now a valuable resource for many.

I’m sorry Adrian, but thank you.

Onwards and upwards after a rest, cake, cocktail, whatever floats your boat.

Rgds, Chris.

Chris; . Permalink
Reply

Great to hear and feel I’m sure, a win for free speech and hopefully increased solidarity. All the best to you in work and life!

Matthew Scofield; . Permalink
Reply

Thanks for the update and I’m relieved to hear the lawsuit is not ongoing!

Andrew; . Permalink
Reply

God bless you. I’m saddened but glad to have come across your story. I’m saddened that Paciello and Hingson (the latter whom I met personally getting my first guide dog at Guide Dogs for the Blind in 2006), have amplified their voices towards legitimizing these anti-freedom corporations… for money. This is not freedom. This is not joy. This is not democracy. This is not America.

Why these two would not utterly recuse themselves, I don’t know. They had plenty of money and success, but it wasn’t enough; they wanted more. Some people are weak; they believe in a “can’t beat them, then join them” mentality. They believe they can somehow fix a broken system. But it is that: broken. It cannot be fixed. These companies are overlay companies; they always will be. Corporate America is broken. Money is it’s only objective. It is like a hungry monster, and yes, it is weird. In fact, weirder and weirder every day.

So strange how the companies purporting to be the champions of blind people become our oppressors.

Sure, I believe in using AI and machine learning to help fix accessibility issues, in the hands of competent consultants; but never, ever as a live in-page “replacement” for accessible design and coding. Overlays that interfere with a user’s chosen assistive technology will never, ever be the answer. They should know that, but they are big tech CEOs, and that’s the way American big tech CEOs are. It’s time Americans learned and acknowledged that.

But that’s the old way, the old world order, staggered and sick. What I am seeing now with Kamala Harris and Tim Walz, I finally feel happy and proud to be an American, to be living in this country, for the first time in my life. Diversity is what makes this country great. People with disabilities, people of color, women, minorities, immigrants, they have far more in common with us than the old guard, even the old blind guard that is so pro-business and blind to everything but money that they have forgotten what democracy is. To see all this beautiful diversity, people of color, and strong women leaders who show far more empathy and compassion than I have ever seen before. I feel hopeful that these corporate crimes (yes, going after your Constitutional right to express your opinion about a business, a right so foundational to this country that it shouldn’t otherwise exist) … these crimes will come to light, and will no longer be tolerated.

I am sick and tired of the blind and visually impaired community being exploited and used like this. Last year at CSUN, I met several people with albinism who work for Apple. Yes, Apple grabbed them up and is totally using them, these bright and wonderful young people, to do its dirty cover-up that it no longer cares about accessibility. They care more about their $3,500 VR headset than they do about bringing back our Touch ID to the iPhone so that those of us who wear a hat and sunglasses can unlock our phones outdoors. Does Apple even listen to its own employees? No, they have no power! The CEO that knows nothing about accessibility or even computers for that matter (but boy does he know money) has all the power, it’s disgusting. And so many accessibility bugs that have been there for over a decade. Why don’t they just fix them, they have all the money in the world? I showed my MagicMac app I built to a couple Apple folks, and it was like a deer in the headlights. They couldn’t believe a low vision person, being a faithful Mac user since 2005, had such difficulty with their products and had to invest so much time to write a program to do simple things like switch Light and Dark mode while switching color inversion, do text replacements with on-demand screen reading, etc. The one guy claimed Apple had all these features. Totally clueless. And Apple is only one example.

Well, now I’m switching to Linux and hoping to help build open source cross platform assistive tech, because re-inventing the wheel on every platform for accessibility is ridiculous. While JAWS may be great, $1,200 or $95 per year is highway robbery for a screen reader. It should be open source and customizable. I hope to do a talk at CSUN next year on my quest for cross platform accessibility. Normally sighted people can use any OS and any device they want, out of the box, without paying extra. We have to do all kinds of tweaking, customization, purchasing software, configuring it, dealing with the headaches and senseless user defaults that so-called user experience “experts” thought were great, like tiny font sizes, high screen resolutions out of the box, lack of dark mode out of the box, and of course forcing low vision and blind users to have to go through headache after headache every time we set these systems up to configure them for accessibility. No, Apple, Microsoft, and Google — your stuff doesn’t “just work.” If your executives and investors had visual disabilities, wow, would things be different. And it seems to me that the Linux community has an even greater blind spot, but at least it’s open source, and we have more chance to democratically change it.

Hope to connect with you. I was so inspired by this terrible thing that you went through with AudioEye that I just can’t be silent anymore. It’s a pretty safe bet they have not changed, even with Paciello on board. But we are the ones who need to change. We can’t let this happen. For future generations, we must stand up.

Accessibility is a human right. Let’s make it happen.

Tom Grushka; . Permalink

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