NAD v. Netflix ADA Lawsuit Requires Captioning for Streaming Video
The internet offers a unique challenge: how do we ensure that all of our digital products, services, and communications are accessible to people with disabilities? What are companies required to do to accommodate such users?
Federal disability laws still await comprehensive updates to keep pace with the digital world. The Americans with Disabilities Act (ADA) was set to receive input from the DOJ in 2018. However, such plans were dismissed in 2017 by the Trump administration and the DOJ indicated it would not give official guidance regarding website accessibility under the ADA.
Aside from direct amendments to the laws, or lack thereof (in the case of the ADA), disability case law has played a major role in setting precedent for how the ADA applies to the internet. One landmark case comes the mind:
NAD v. Netflix.
The NAD v. Netflix ADA case was filed due to no captions for streaming content.
In June 2011, the National Association of the Deaf (NAD) filed suit against Netflix, citing their lack of closed captioning for streaming video as a violation of the ADA.
Netflix offered mail-order DVDs, which abided by FCC closed captioning rules, but its content for online streaming service was not captioned.
In 2015, more than half of all Americans watched Netflix. In 2020, there were 203.67 million Netflix subscribers worldwide. Because of its widespread use and popularity, the video streaming service must be made accessible to deaf and hard of hearing viewers.
NAD President Bobbie Beth Scoggins explained at the onset of the 2011 lawsuit:
Netflix claimed the ADA did not apply to its streaming platform.
Title III of the Americans with Disabilities Act specifies that “places of public accommodation” must be accessible to people with disabilities.
Netflix’s defense in the NAD v. Netflix ADA lawsuit was that its streaming business could not be considered a “place of public accommodation” because it’s not a physical place. It argued that the ADA was intended to increase access for people with disabilities to physical structures, like parks, museums, train stations, and theaters. Since Netflix streaming video is not a physical product or service, it argued that it can’t be considered a “place of public accommodation” and therefore isn’t subject to the ADA.
The ADA does not explicitly mention web services or digital products as being subject to its regulations. So, was Netflix right to argue it was exempt from ADA captioning requirements? The answer isn’t so simple.
The NAD’s legal representation was led by Arlene B. Mayerson, one of the country’s experts on disability law.
Arlene Mayerson presented on Online Video and the ADA: How a Landmark Case Changed the Legal Landscape of Closed Captioning.
The NAD argued that Netflix was subject to the ADA.
The NAD’s counsel acknowledged that of course the ADA doesn’t specifically mention the internet – because it was passed in 1990, before the internet was widespread.
That doesn’t mean that the internet is exempt from the ADA; it means that lawmakers need to redefine what public places are in a digital landscape.
So how is streaming video content on Netflix considered public?
The NAD counsel examined Netflix’s own advertising to illustrate this: “Watch what you want, when you want by streaming instantly over the internet right on your TV.”
Through this lens, Netflix delivers more than just the movie itself. It delivers the experience of instant access to the programs you want, streamed over the internet.
Unless that content is captioned, Netflix is not providing an equal experience for deaf and hard of hearing viewers. They get a lesser product than other members of the public.
The NAD also brought up the social aspect of Netflix streaming, how a family that cozies up on the couch to watch a movie on Netflix cannot equally include someone who does not hear. In this sense, Netflix is not just a private activity. It’s a shared, or public activity, which makes the ADA applicable.
The judge ruled that the ADA does apply to Netflix streaming video.
Judge Ponsor ruled that:
It would be “irrational to conclude” that “places of public accommodation are limited to actual physical structures.
“In a society in which business is increasingly conducted online, excluding businesses that sell services through the internet from the ADA would run afoul of the purpose of the ADA. It would severely frustrate Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges, and advantages available indiscriminately to other members of the general public.”
In other words, the judge ruled in favor of the NAD’s argument that Netflix is subject to the ADA and therefore must provide closed captioning for streaming web video.
Netflix was ordered to caption its streaming video library by 2014, and to continue captioning content published thereafter. It also paid the NAD $755,000 for legal fees and damages.
The NAD v. Netflix case leaves room for interpretation.
It’s important to note that the ruling in NAD v. Netflix was a Massachusetts district court decision, not a US Supreme Court decision. That means that this ruling provides a precedent for the ADA’s interpretation in regards to digital businesses, but it not the law of the land, officially. That leaves room for different interpretations and sometimes conflicting rulings.
In 2011, Netflix was the target of a different closed captioning lawsuit, Cullen v. Netflix. Filed by Donald Cullen, a deaf Netflix viewer, claimed that Netflix was breaking anti-discrimination law by failing to provide adequate closed captioning on its online streaming videos. In that case, the judge ruled that Netflix is not subject to the ADA because it is not a physical place – the exact opposite decision from NAD v. Netflix. This ruling is unpublished, however, which means it is not intended to set a legal precedent.
The NAD v. Netflix lawsuit sent a strong message to online video businesses.
The outcome of the lawsuit sent a strong message to video creators and distributors that the ADA may apply to your online content. This has far-reaching implications for other entertainment companies that stream video online, like Hulu or HBO Max. It can also affect how the ADA is interpreted in cases of educational videos, such as the closed captioning lawsuit against Harvard and MIT.
In the years since this case, Congress passed the 21st Century Communications and Video Accessibility Act (CVAA), which applies FCC closed captioning rules to any online video content that previously aired on American television with captions. This erased any doubt that TV shows streamed online require captions.
For more about how the ADA affects closed captioning for online video, download our free white paper, How the ADA Impacts Online Video Accessibility.
This post was originally published by Emily Griffin in July 2015 and has since been updated for accuracy, freshness, and comprehensiveness.
DISCLAIMER: This blog post is written for educational and general information purposes only, and does not constitute specific legal advice. This blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.
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