I have written over the years several times about the Internet and whether it needs to be accessible to persons with disabilities. That discussion appears in my book. I also wrote an article on whether colleges and universities home pages need to be accessible to people with disabilities. Finally, I wrote an article on whether law firms must have their website be such so that they are accessible to people with disabilities. As mentioned in those articles, there are several lines of thought on this. First, one line of thought is that the ADA applies in electronic space ( Doe v. Mutual of Omaha Insurance Company 179 F.3d 557 (seventh circuit 1999). Second, another line of thought is that the ADA only applies in physical space ( Access Now, Inc. v. Southwest Airlines Company 227 F. Supp. 2d 1312 (S.D. Fla. 2002). A third line of thought Is that the Americans with Disabilities Act applies to the Internet where the Internet is a gateway to a brick-and-mortar store. ( See National Federation of the Blind v. Target Corporation 452 F. Supp. 2d 946 (N.D. Cal. 2006)).
So what about if you’re watching a Netflix movie and the movie is not closed-captioned. I personally have faced this. While I have not watched Netflix in the streaming content, I have watched it on DVD. There are many DVDs that are not close captioned. This makes it very difficult for me to view the movie. Would this be subject to a violation of the ADA claim? That is, would the ADA force Netflix to close caption its DVDs? What if you watch the movies by streaming, would the ADA force Netflix to make sure that the streaming was close captioned? How does that play with the recently signed 21st-Century Communication Video Accessibility Act of 2010, which says that things shown on TV and then migrate to the Internet must be close captioned after a certain date.
A case that addresses all these questions is National Association of the Deaf v. Netflix, Inc. , 2012 WL 2343666 (D. Mass. June 19, 2012). In this case, a deaf person, the National Association of the Deaf and the National Association of the Deaf’s Massachusetts affiliate brought suit against Netflix alleging that its streaming, which was not close captioned, violated the Americans with Disabilities Act. The defendant responded that the Americans with Disabilities Act was not violated and that the Americans with Disabilities Act was preempted by the 21st-Century Communication Video Accessibility Act of 2010.
The court was having none of these arguments. First, the court said that the ADA was meant to evolve with technology. Second, the court read the categories of what is a place of public accommodations and assumed they applied in the context of the Internet regardless of how the product of the business is consumed because the ADA covers the services “of” a place of public accommodation and not services “at” or “in” a place of public accommodation. National Association of the Deaf 2012 WL 2343666, at *4 (The National Federation of the Blind case made the same argument). For example, Netflix could well be a service establishment because it provides customers with the ability to stream video programming through the Internet. It could also be a place of exhibition or entertainment because it displays movies, television program and other content. Finally, it could be a rental establishment because it engages customers to pay for the rental of video programming (Id. at At *3). In other words, there is no reason why these categories could not apply in electronic space.
A business entity sued for not being accessible in accordance with its obligations as a place of public accommodation under the Americans with Disabilities Act must also be the entity that owns the place that is being sued. Netflix claimed that it was not such an entity. However, Netflix did admit that it was working to provide captioning for the content on it streaming service. That was enough for the court to say that Netflix had some degree of control over the situation. Id. at *5.
Finally, the defendant tried to claim that the 21st Century Communications and Video Accessibility Act of 2010 precluded claims under the Americans with Disabilities Act and/or conflicted with the Americans with Disabilities Act. The court was having none of this either. Nothing in the 21st-century Communications Act suggested that that Act preempted the Americans with Disabilities Act. Further, the court saw no conflict between the two acts because the scope of the 21st-century Communications Act is fairly narrow. That is, that act requires captioning of things originally shown on TV that make its way to the Internet after a certain date. Much of that may not even be applicable to the Netflix situation. Id. at **6-10.
So what does this all mean? It means that disability rights advocates have now been given the green light to think beyond the three traditional lines of thought that had previously existed on whether an Internet site could be subject to the Americans with Disabilities Act. It also means, that defendants must be aware that their exclusively online businesses even if they don’t fit the traditional lines of thought that existed previously, may now be subject to the Americans with Disabilities Act. This case is significant because of the new approach that it takes. That is, it just assumes that businesses are places of public accommodations if they are exclusively on the Internet providing they are doing what places of public accommodations listed in the Americans with Disabilities Act would be doing if they were in physical space.
All this said, it isn’t that complicated to have your website accessible to persons with disabilities (find someone familiar with Section 508 standards). It also makes good business sense.
Update: Many times, blogs will talk about the same cases. There is not a problem so long as a variety of perspectives are offered. This particular case came to me courtesy of the Seyfarth Shaw blog that is on my blogroll. It is Cullen v. Netflix, Inc. 2012 WL 2906245 (N.D. Cal. July 13, 2012). This particular case was identical on its facts to the Massachusetts case discussed above. The only difference being that it was a suit under the California Unruh’s Civil Rights Act and the California’s Disabled Person’s Act. In this case, the Northern District of California said that for the Americans with Disabilities Act to apply, a physical space must be involved. They did note the Massachusetts case above as well as the Seventh Circuit case, which as noted above had held, in dicta, that the ADA applies to electronic space. They also acknowledged The National Federation of the Blind case where a District Court in California said that the ADA applied where the Internet was a gateway to a brick-and-mortar store (no such gateway existed with Netflix). Also discussed in this case was whether the plaintiff had an independent cause of action under the California Unruh’s Civil Rights Act. That particular act is tied into the ADA. However, a separate cause of action independent of the ADA is allowable if intentional discrimination exists. However, the court found that no such intentional discrimination existed, and therefore, the claims under the California Unruh’s Civil Rights Act had to be dismissed.
In short, this question is undoubtedly headed to the United States Supreme Court. It would make sense for the plaintiff to appeal this case to the U.S. Court of Appeals for the Ninth Circuit for a couple of different reasons. First, if it doesn’t lead to a reversal (for example, an adoption of the reasoning in the Massachusetts case), it could lead to an affirmation that the Americans with Disabilities Act applies where the Internet is a gateway to a brick-and-mortar store. Second, since the National Federation of the Blind v. Target case is a U.S. District court case, the Ninth Circuit would have the opportunity to address that case directly. Third, if the Ninth Circuit ruled that the Americans with Disabilities Act applies to physical space only, perhaps also allowing for the gateway, that would set up a conflict with the Massachusetts case, assuming that case was affirmed by the First Circuit. Of course, the Massachusetts case could be appealed to the first circuit and it is possible that the first circuit might agree with the District Court decision in the California case. No doubt, be on the lookout for further developments.
What is a business to do? From a preventive law standpoint, it makes sense for the business to go about its business as if the Americans with Disabilities Act applied to the Internet. That also may be good business sense as it increases the customer base for the business. However, a business would be perfectly justified in taking the position that the Americans with Disabilities Act does not apply where the business is strictly on the Internet. Ultimately, this will probably be settled by the U.S. Supreme Court. If the personnel is the same by the time this case reaches the U.S. Supreme Court it is hard to say how the case would go. Previously, the swing vote in Americans with Disabilities Act cases with Justice O’Connor (compare Tennessee v. Lane with Board of Trustees of the University of Alabama v. Garrett). Before Justice Alito assumed his position on U.S. Supreme Court, his Americans with Disabilities Act cases were pretty much a literal interpretation of the Americans with Disabilities Act as applied to the facts. Of course, it is entirely possible that the composition of the court will have changed by the time this case gets there.