Koena given formal notice by FACIL’iti

On April 22nd 2021, we, at Koena, received a letter of formal notice issued by the law firm HAAS Avocats, on behalf of their client FACIL’iti. The issue: tweets published by Koena, whose tone the company did not appreciate, feeling denigrated. The subject of the formal notice: to silence us. However, we are far from being the only ones, nor the first, to be the recipients of this type of formal notice… And this type of practice is far from over. It is extremely damaging for digital accessibility. Let’s find out why.

FACIL’iti: a common practice of formal notice

On February 4th 2021, I receive a private message on Twitter warning me to be careful. A pro in digital accessibility contacts me. I’ll let those interested waiver their anonymity if they choose to but do not want to take the initiative for them.

This person informed me that she was part of the group of people who had received a formal notice from FACIL’iti. I wanted to know more. She kindly sent me a copy of the formal notice received, and put me in contact with other people who were also the subject of a formal notice.

The process is always the same:

  • a person concerned by digital accessibility, often in a professional capacity, denounces a statement mistakenly assimilating digital accessibility and the solution proposed by FACIL’iti
  • FACIL’iti, with the help of its lawyer, sends a letter to this person’s employer, even if the person made these comments on his or her own free time and from a personal account…
  • The object of the formal notice: remove the tweets that mention them and commit to no longer speaking, under penalty of prosecution.

This bullying practice shocked me. However, it had a deterrent effect. Some people preferred to remove their tweets, others didn’t, but decided to keep a low profile to avoid trouble. And I perfectly understand them. The most important thing in these conditions is to do what you think is best to protect yourself.

That said, I was necessarily a little disappointed not to be able to denounce this practice which I found shocking. I had planned a very subtle article, which I would have read to the people on formal notice to get their approval and not to harm them in any way. But that takes time and energy that I didn’t have.

Fortunately, on April 22nd 2021, I’ll have the opportunity to provide you with the details of these practices, Koena having been put on formal notice on terms very similar to the previous notices and ones of which I was aware.

Content of the formal notice against Koena: the arguments put forward

The simplest thing is for you to read the text of the formal notice yourself:

Accusing us of “peremptory and unjustified assertions” (sic) with our tweets, the lawyer of FACIL’iti advances a series of arguments to justify their formal notice.

“There is no single form of accessibility that can meet 100% of Internet users’ needs”

True, but that’s not really the point. Here, what Koena is talking about is digital accessibility, and it’s clear. And on this subject, technical standards and legislation have built up this definition. European and French legislation explicitly recognizes a precise definition of digital accessibility.

This definition is based on that given by the Web Accessibility Initiative (WAI) of the W3C consortium. This is the organization that issues the digital accessibility rules on which European and French standards are based.

The definition given by the WAI is as follows:

Web accessibility means that websites, tools, and technologies are designed and developed so that people with disabilities can use them. More specifically, people can:

  • perceive, understand, navigate, and interact with the Web
  • contribute to the Web
Find the complete definition of digital accessibility on the WAI website.

Digital accessibility is a way of designing and developing.

The solution developed by FACIL’iti does not act on that code, as Yves Cornu reminds us on our blog. Therefore, it is not about digital accessibility. So, anything asserting or implying the contrary is at best erroneous, at worst a lie.

“The tool developed by my client has been the subject of 5 years of research and development and a patent filed with the INPI”

Well! I am so sorry for you. Spending 5 years of R&D and still not know and apply the digital accessibility rules? How is that possible?

To spend 5 years of R&D and come up with a solution that consists of changing the appearance of web pages… “That’s it?”

I understand your frustration, and I sympathize. I wouldn’t say it was a failure by the way, but rather that it didn’t work out. Come on, it’s okay.

As for the argument of the patent filing at the INPI, for the convinced free software activist that I am, it is… a little weak as an argument.

To be honest, I find it hard to understand where exactly the argument is. Isn’t that what we call “an argument from authority”? This is interesting, because if we read the definition from Wikipedia:

An argument from authority (argumentum ab auctoritate), also called an appeal to authority, or argumentum ad verecundiam, is a form of argument in which the opinion of an authority on a topic is used as evidence to support an argument. Some consider that it is used in a cogent form if all sides of a discussion agree on the reliability of the authority in the given context,and others consider it to always be a fallacy to cite an authority on the discussed topic as the primary means of supporting an argument.

[…]

This fallacy is used when a person appeals to a false authority as evidence for their claim. These fallacious arguments from authority are the result of citing a non-authority as an authority.

Check out the article on the argument from authority on Wikipedia

Just for the record, Koena is an accredited Young innovative company, and we also do research. The basis in research is the methodology which must be verifiable and open to criticism. I’d be very curious to check your data, research and analysis methodology… I dare you!

“In addition, the solution is the subject of tailor-made work on each website and cannot be assimilated to a simple automated plug-in”

One doesn’t preclude the other, and I’m not very impressed with this argument. But I would be delighted to discuss the technical aspects that you say are innovative in your solution.

What I see are mainly the problems of a solution that collects user data, requiring them to create an account. Users who are dependent on a solution and its implementation on customer sites.

A solution like Orange Comfort + is much better in several respects:

  • it is a browser extension: no need for the user to create an account, no need for the website consulted to have installed anything.
  • it’s open and free, and if you install it on Firefox, it guarantees that users’ data will not be used without their consent.
  • he message is distinct and transparent: it’s a solution to “improve everyone’s comfort and enhance accessible websites”. No opportunistic nor ablist speech saying that this is a solution that cures all ailments: age-related macular degeneration, Parkinson’s or others…

“The adjustments my client suggests are tested and approved by people with disabilities, in partnership with reference associations”

Ah… Another argument from authority. It’s funny, I myself am disabled (and not “handicapped” by the way…), I have disabled people in my team at Koena. I am rather close to several associations… and none of them share your approach.

A consensus among digital accessibility professionals, very critical of overlay tools just like FACIL’iti

I’m even a member of the Information and Communication Technology working group of the European Disability Forum, and the consensus is very clear.

In fact, the consensus is even very established at a global level. Because the threat of an ambiguous discourse for commercial purposes to sell solutions, passing them off as accessibility, is unfortunately not only French. It is in this capacity that diverse digital accessibility professionals have gathered around the manifesto initiated by Karl Groves (which if you’re interested, you should sign).

The manifesto on overlayfactsheet.com

Small excerpt from this text in English: The signatories undertake:

  • We will never advocate, recommend, or integrate an overlay which deceptively markets itself as providing automated compliance with laws or standards.
  • We will always advocate for the remediation of accessibility issues at the source of the original error.
  • We will refuse to stay silent when overlay vendors use deception to market their products.
  • More specifically, we hereby advocate for the removal of accessiBe, AudioEye, UserWay, User1st, MK-Sense, MaxAccess, FACIL’iti, and all similar products and encourage the site owners who’ve implemented these products to use more robust, independent, and permanent strategies to making their sites more accessible.

The subject is serious. It’s a global problem. FACIL’iti is mentioned by name on a website whose initiative is led by an independent American consultant renowned in his field, and signed by over 400 people all over the world while I’m writing this post.

Concerned associations

Various associations have already sounded the alarm bell:

  • With a joint press release from the French Confederation for the Social Promotion of the Blind and partially sighted (CFPSAA), bringing together the main associations of people affected by visual impairment. The press release is available on the website of the Fédération des aveugles de France under the title “News, tools, a webinar… and gone! The CFPSAA is sounding the alarm“where it is written: “the proposed tool is not accessible in itself, it allows at most, a little comfort for some users, but does not turn an inaccessible website into an accessible one! Without necessarily wanting to belittle the pleasant innovation that this comfort tool represents, we cannot overlook the information which expects us to believe that problems are driven away with the wave of a magic wand and that a gadget makes up for the process that represents the design and creation of an accessible site.
  • With an entire case file from CERTAM, the Valentin Hauy association research centre devoted to digital accessibility, with this warning: “We must also ensure that state operators such as UGAP (central d ‘purchases by public bodies), do not propagate erroneous information to public buyers by presenting software overlays as a solution to the problems of accessibility which can certainly bring comfort to a certain categories of users, but which can, in no way, provide compliance with the RGAA. UGAP tweet wrongly presenting the FACIL’iti software overlay as an accessibility solution.”

“These actions are all the more serious as you enter into a relationship of direct competition with my client”

What is a competitor? I’ll quote Wikipedia again:

Competitiveness pertains to the ability and performance of a firm, sub-sector or country to sell and supply goods and services in a given market, in relation to the ability and performance of other firms, sub-sectors or countries in the same market. It involves one company trying to figure out how to take away market share from another company.

Wikipedia article on competition.

But I formally contest targeting the same market as FACIL’iti. Koena specializes in digital accessibility. And FACIL’iti does not make digital accessibility.

We are also clearly and distinctly in a social model of disability: it is up to the digital environment to adapt to the diversity of the needs of its users.

FACIL’iti is based on a medical model of disability. I’ll quote an extract from the list of health situations indexed on the FACIL’iti site (in French):

Visual needs

  • Achromatia
  • Cataract
  • Colour Vision Deficiency
  • ARMD – Age related macular degeneration
  • Visually impaired
  • Presbyopia

Motor needs

  • Osteoarthritis
  • Wilson’s disease
  • Parkinson’s
  • Multiple sclerosis
  • Essential tremors

We are clearly not positioning ourselves as competitors, as we’re not doing the same job at all. That was a completely unfounded argument.

Now what do we do?

Fortunately, the mail indicates that “I inform you that my client is ready to settle this dispute amicably“. Happy days!

Then again, it is normal since your lawyer led in with “my client is concerned with respect for freedom of expression and the right to criticism“. Thank goodness for that… I had a doubt, as if these multiple formal notice procedures were intended to silence experts by scaring them as soon as a tweet was aimed at them. Phew, it’s just a misunderstanding… That’s good news.

That being said, let’s get back on track.

Koena’s response to the formal notice

  • Regarding the request to remove the 2 disputed tweets:
    • Koena’s response: no.
  • Regarding the request to commit in writing to no longer post comments or articles on the social network Twitter or on any other means of communication (blogs, websites, webinars and social networks in particular):
    • targeting the solution developed by my client:
      • Koena’s response: no.
    • issuing assessments likely to harm its activity by denigrating its solution:
      • Koena’s response: not applicable.

Counter-proposal for FACIL’iti: discuss and compare FACIl’iti’s research with a second opinion

A public, open, accessible, recorded debate

I know you are now fond of social networks and online publications. So, I will send you a link to this article by registered mail with acknowledgment of receipt. This will save ink. I’m sure that in addition to your commitment to freedom of expression, you are sensitive to the protection of the environment.

It isn’t reasonable to ask me not to unmask lies. As you’ll surely understand, I got involved by signing the manifesto published by Karl Groves. It’s part of our professional ethics at Koena.

On the other hand, if accessibility issues are important to you, why not discuss them publicly? We could include people with indisputable authority in terms of digital accessibility, from associations or the administration?

A public, open, accessible, recorded debate. We could rebroadcast it, making it accessible to all with impartial moderation.

I look forward to this prospect, and I suspect that a committed company like yours must be just as impatient for such an exchange.

Verified research

At Koena, we make it a point of honour to conduct rigorous research. We keep all our data and our methodology available to any research centre wishing to verify it. We also publish peer-reviewed scientific papers. The singularity of scientific research is precisely to be able to have this verification by peers. No one is safe from error, is that not right? According to your statements, I am really curious to know more. What is the methodology used, the data used and the analysis that could have led you to the speech you are making? What could have made you think that the development of your solution would bring accessibility to people with disabilities?

Now that you understand that we are not competitors, maybe we could do this check at Koena?

But maybe you’re still a bit sceptical? It doesn’t matter. I am sure that we can find an independent research centre, such as a university or an associative research centre like CERTAM perhaps?

There is nothing like facts to put the debate on a sound and objective basis.

I look forward to hearing your opinion on these 2 proposals.

Obviously, I will publish any mails from you on this same blog.

To be continued…


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