NAD v. Netflix: ADA Lawsuit Requires Closed Captioning on Streaming Video

July 23, 2015 BY EMILY GRIFFIN
Updated: June 3, 2019

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 await comprehensive updates to keep pace with the digital world. The Americans with Disabilities Act (ADA) will get input from the DOJ in 2018.

Section 508 of the Rehabilitation Act got an ICT refresh in 2015 to reflect WCAG 2.0 accessible web design best practices.

Aside from direct amendments to the laws, disability case law has played a major role in setting precedent for how the ADA applies to the internet. One landmark case: NAD v. Netflix.

The Complaint

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 offers mail-order DVDs, which abide by FCC closed captioning rules, but its “Watch Instantly” online streaming service was not captioned.

Since more than half of all Americans watch Netflix, the video streaming service must be made accessible to deaf and hard of hearing viewers.

NAD President Bobbie Beth Scoggins explained:

“We have tried for years to persuade Netflix to do the right thing and provide equal access to all content across all platforms. They chose not to serve our community on an equal basis; we must have equal access to the biggest provider of streamed entertainment. As Netflix itself acknowledges, streamed video is the future and we must not be left out.”

Netflix’s Argument

The ADA Title III specifies that “places of public accommodation” must be accessible to people with disabilities.

Netflix’s defense in the NAD lawsuit was that its business cannot be considered a “place of public accommodation” because it’s not a physical place. It argued that the ADA was intended to increase access to physical structures, like parks, museums, train stations, theaters, etc., for people with disabilities. Since Netflix streaming video is not a physical product or service, it can’t be a considered a place and therefore isn’t subject to the ADA.

The ADA does not mention web services or digital products as being subject to its regulations.

NAD’s Argument


The NAD’s legal representation was led by Arlene B. Mayerson, one of the country’s experts on disability law.

Arlene Mayerson presented at the 3Play Media webinar Online Video and the ADA: How a Landmark Case Changed the Legal Landscape of Closed Captioning.

Watch a recording of her presentation

Read the full transcript

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 we need to redefine what public places are in a digital landscape.

So how is streaming video 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 Ruling

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.

Conflicting Rulings

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 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.

What NAD v. Netflix Means for the ADA

The NAD v. Netflix 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 Go. It can also affect how the ADA is interpreted in cases of educational video, such as the closed captioning lawsuit against Harvard and MIT.

Note that 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 streamed TV shows need captions.

For more about how the ADA affects closed captioning for online video, download out whitepaper:

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