The Impact of Recent Lawsuits on Video Accessibility Requirements

Although many accessibility laws were written before the Internet was an integral part of everyday life, recent lawsuits and case law have extended accessibility requirements to online video.

In this webinar, Owen Edwards from SSB BART Group and Lily Bond from 3Play Media will take a look at recent video accessibility lawsuits and their implications for other organizations across industries. Their focus will be on closed captioning and video description legal requirements, case law, and standards.

This presentation will cover:

  • Legal requirements for video accessibility
  • NAD vs. Netflix
  • NAD vs. Harvard & MIT
  • OCR & DOJ inquiries into IT accessibility at colleges & universities
  • NFB vs. Penn State
  • Lighthouse for the Blind vs. Redbox
  • California Council for the Blind vs. AMC Theaters
  • Best practices for caption quality
  • Best practices for video description quality
  • Benefits of making video accessible


Owen Edwards
Senior Accessibility Consultant | SSB BART Group

Lily Bond
Director of Marketing | 3Play Media

Webinar Q&A: Insights from an Accessibility Consultant

To learn more about the impact of recent online video accessibility lawsuits, watch the presentation below or continue reading on for highlights from the Q and A session:


Where can I find copies of the Dear Colleague letters from Office of Civil Rights (OCR) to the universities as discussed in the presentation?

LILY BOND: All of the OCR letters are publicly available online: University of Phoenix, University of Cincinnati, and Michigan Department of Education.

How do you recommend using audio description for lecture slides and static images?

OWEN EDWARDS: That’s an area where it’s about whether the images contain content, or information which isn’t being described verbally. I’d like to think that in the presentation that we did, we covered everything that was available visually in what we described. And the visual presentation was just there to back it up.

Similarly, in lecture slides, the intent of the lecturer, or the intent of the presentation, should be to include all of that visual content. And an area to really think about is whether there are important images or graphical content included in that presentation that really needs a description beyond its visual presentation.

You mentioned 80% of people using captions are not deaf. What is the source for that?

80 percent people who use captions are not deaf or hard-of-hearing

LILY BOND: The Office for Communications in the UK published a study that looked at over 7 million users in the UK. And they found that 80% of the people who were using closed captions were not deaf or hard of hearing. So that’s where that number comes from.

Are there copyright issues with creating separate audio description videos?

OWEN EDWARDS: There has been some debate about where this falls within copyright issues.

Typically, when you’re working with an outside vendor to create description, they are then adding the description. They’re creating the description as a separate entity, which is then put back into the video content. And the video content is somehow owned by the entity that’s adding the description. But there are discussions about what the implications are, including a description – which is essentially a derived content.

And a number of the blind advocacy organizations – including the National Federation of the Blind (NFB) and the American Foundation for the Blind (AFB) – have been looking into the legal impact of this. That’s not an answered question yet.

Is it possible to create one description or caption file that is adequate to be viewed or heard by all audiences, like blind, low vision, and deaf users?

OWEN EDWARDS: A single file which contains both the captions and descriptions? We haven’t seen that widely used. There are people who have considered that, in terms of a transcript, where there isn’t necessarily the time synchronization with the video. That would meet the WCAG Level A requirement of providing a transcript but it wouldn’t meet the caption requirement. So, there isn’t an easy way, then, for that to become a description track.

LILY BOND: It’s a complicated answer. I think you were starting to speak to the potential for a time-synchronized description file that would run like a caption file. And I would imagine that there is a world in which those could be combined. But mainly, it would be complicated to make sure that all users know which is which, and differentiating between the audio, the caption file, and the description file. But it’s an interesting idea.

OWEN EDWARDS: I think one of the issues that it brings up is that in description, there’s in general way more information presented by a video than can be described. So, adding captions would need to be done in a way so that people who didn’t need the captions weren’t presented those, as well. Because a voice would just add to the overload.

LILY BOND: Yeah, I would love to see separate caption tracks – like a caption track and then a time-synchronized text description track. I think that would be a really great way to do that.

OWEN EDWARDS: That’s a very interesting area where there’s certainly research going on around. We just haven’t seen it broadly implemented.

Is it a best practice to caption silence or leave it blank?

WCAG 2.0: Bringing Web Accessibility into the 21st Century
LILY BOND: From an accessibility standpoint, if you imagine a deaf or hard of hearing viewer watching a video, they would have no idea if the video is silent, if it’s not tagged as such.

In order to create that equivalent experience, you want to say “silence” or “no speech,” so that they know they’re not missing something.

You mentioned cases related to higher education, but are there differences for K-12 institutions?

LILY: The legal requirements differ slightly, although public schools are required to comply with the Americans with Disabilities Act (ADA).[…] Owen, I don’t know if you have any other insight on that.

OWEN EDWARDS: Yeah, I don’t know how that would be different, K-12. As you say, it’s an ADA issue. And as the Department of Justice (DOJ) has started to include […] the Web Content and Accessibility Guidelines (WCAG) 2.0 compliance within ADA, that would be the obvious way that it’s impacted. So, it would seem to be the same. I’m not aware of there having been something specific that breaks that out.

Can you elaborate on the changes coming in October to Section 508 of the Rehabilitation Act? Where might I find more information on this, and are there discussions about which WCAG standards will be written into the Section?

OWEN EDWARDS: Yes, there’s definitely a lot of information online. The SSB BART Group blog provides some articles about what’s changing with the Section 508 Refresh.

It’s really aligning the existing 508 standards that were devised at a time when a lot of the digital online content wasn’t in the form that it is now. It’s lining it up with WCAG 2.0 – [specifically], Level AA. So, [they are] giving some specific requirements, in terms of access to websites, whether color is an issue, whether keyboard accessibility is possible, and just breaking out some granularity but being more specific about video accessibility – bringing in some of those requirements from WCAG 2.0.

If a video – on YouTube, for example – is used in a course and has no captions, and the owner will not caption, will accessibility law trump copyright law?

LILY BOND: There’s a lot of arguments that say that education is fair use. There’s also a lot to be said for the courts going after accessibility violations. But that being said, you should definitely take it up with your legal counsel, and they may provide you with some more information about that.

We have a very useful resource by Blake Reid, who is both an accessibility lawyer and a copyright lawyer. And he presented very articulately about the intersection of accessibility law and copyright law, and where you should stand on that.

We do provide a tool called the Captions Plugin, which allows you to publish captions on a video without republishing that YouTube video. You could just embed the YouTube video, and then embed the caption file below it, without having to republish and take views away from that YouTube user. So that’s one way around the copyright violation.

What languages are mandated for captioning – English only?

LILY BOND: The FCC and the 21st Century Communications and Video Accessibility Act (CVAA) – all of their requirements apply to English content and Spanish content, as well as mixed English and Spanish content. But as of now, there are no requirements beyond English and Spanish captioning.

WCAG is a little confusing at times. If we are striving to meet Level AA, do we have to provide transcripts if captions are present in the pre-recorded video? What is the rule about one or the other, in terms of AA compliance?

LILY BOND: For a video file, Level A requires the captions because they are time synchronized. And it is always better to provide a text transcript as well, but the text transcript is definitely required for audio-only content.

OWEN EDWARDS: It does cause confusion. It is an area where it’s not been very clear. For Level A, a caption file is required, and either a transcript or audio description. But moving to Level AA, audio description is required. And so in most cases, it makes sense to start with audio description at Level A, because it will be required at AA.

Click this link to download the white paper titled WCAG 2.0: Bringing Web Accessibility into the 21st Century

How would you suggest universities respond to private law firms that send letters claiming that they “have tested web accessibility of your websites” and found them lacking, with the implicit threat of a Harvard/MIT-style lawsuit?

LILY BOND: It’s a very complicated [answer]. I will say that it’s clear the OCR and DOJ are taking these complaints seriously. It is always safer to be accessible.

[I]t’s clear the OCR and DOJ are taking these complaints seriously. It is always safer to be accessible.

Lily Bond 3Play Media

It’s really important to get your legal counsel involved at that point, and determine what you should do from there. These laws are basically meant to improve accommodations, not define where you can get out of them. You always want to err on the side of accessibility. But it’s something you should be cautious about. There have been a lot of complaints. There have been a lot of resolution agreements, a lot of lawsuits. And it’s something to take seriously, and definitely to bring your legal counsel into.

OWEN EDWARDS: Right, Lily. And just to piggyback on that, absolutely bring the legal counsel. And we at SSB BART Group work with a lot of legal counsel in that kind of setting, where there’s been some kind of threat, or implicit or explicit threat of lawsuit. And typically, the first step that a legal counsel will take is to bring in an outside company that can do an audit [or] an investigation of what the exposure is.