Will the Floodgates Open Up for Americans with Disabilities Act (ADA) Claims Against Websites?–National Association of the Deaf v. Netflix
By Eric Goldman
National Association of the Deaf v. Netflix, Inc., 3:11-cv-30168-MAP (D. Mass. June 19, 2012)
This is a bad ruling. Really terrible. It’s the kind of results-oriented judicial activism that undermines the public’s trust in the judiciary. The judge made it clear he was going to rule for the plaintiff, no matter what. But in doing so, he has potentially ripped open a huge hole in Internet law. Hey jobless recent law school grads–if this ruling sticks, there may be buckets of money to be made in ADA litigation against Internet companies.
The case involves a Cyberlaw perennial: are websites obligated to comply with the Americans with Disabilities Act (the ADA)? In this case, the desired accommodation is close-captioning for Netflix-streamed video. If websites must comply with the ADA, all hell will break loose. Could YouTube be obligated to close-caption videos on the site? (This case seems to leave that door open.) Could every website using Flash have to redesign their sites for browsers that read the screen? I’m not creative enough to think of all the implications, but I can assure you that ADA plaintiffs’ lawyers will have a long checklist of items worth suing over. Big companies may be able to afford the compliance and litigation costs, but the entry costs for new market participants could easily reach prohibitive levels.
And then there’s linkages with other civil rights statutes, such as Title II of the Civil Rights Act of 1964 (an anti-discrimination law) and state laws, that use similar language as the language interpreted in this ruling. If all of those statutes are back in play too, the range of obligations imposed on websites–and the opportunities for aggressive plaintiffs’ lawyers–expand exponentially. Expect lots of consumer claims that a website discriminated against them based on an impermissible criterion. It’s safe to say that the legal rules at issue in this case could have billions of dollars of impact between the web coding obligations and the potential litigation frenzies.
The most crucial ruling is where the court says that a website qualifies as a “place of public accommodation.” The court deviated from–and, incredibly, didn’t cite to–a nearly unbroken line of precedent rejecting that conclusion. I don’t have a complete roster of cases in this area, but cases that came to mind include Noah v. AOL (a Title II case), Access Now v. Southwest Airlines (an 11th Circuit case), Stern v. Sony, Young v. Facebook and Ouellette v. Viacom. The only plaintiff win in this area is the offbeat National Federation of the Blind v. Target case (which this court did cite), where the court held that Target’s obligations to comply with the ADA in its offline retail stores extended to its website. Because of its fact-specific nature, the Target ruling really hasn’t had much of an impact on Internet litigation over the past 6 years.
Bypassing all of this precedent, the judge instead relies almost exclusively on the heavily-criticized First Circuit Carparts decision from 1994. The NAD made a crafty venue move suing in a court bound by Carparts. Even so, I wonder how this ruling would fare on appeal to the First Circuit (if Netflix goes that route), and I wonder if judges in other circuits will be persuaded by this judge’s ruling.
Netflix also argued that it lacked the copyright permissions to close-caption the copyrighted works of others. This is no joke; recall, for example, the howls over Amazon’s text-to-speech feature in the Kindle. The court says it wants discovery on that issue.
Finally, Netflix argued that the Twenty-First Century Communications and Video Accessibility Act of 2010 (“CVAA”) and associated FCC regulations. preempted the ADA’s application to Netflix’s service. I don’t know anything about the CVAA, but it’s clearly topical to the issue of close-captioning online video. The court says that Netflix (and presumably other sites covered by the CVAA) gets the pleasure of complying with both the ADA and the CVAA. Yay for duplicative and overlapping regulations!
It’s possible that Netflix will win this case in the end (probably not in front of this judge). Until it does, however, we have a clean (if erroneous) ruling that websites are places of public accommodation that are subject to the ADA. I have to imagine plaintiffs will find that pretty exciting.
UPDATE: I got a LOT of criticism for this post. Part of that is because I didn’t try in the post to explain the policy rationales underlying my views. Fortunately, Julian Sanchez has said some of the things I was thinking, so I encourage you to read his post as well.