Scribd Must Comply With The Americans With Disabilities Act (Forbes Cross-Post)
The Americans With Disabilities Act (ADA) is an important civil rights law intended to ensure that people with physical disabilities can enjoy the same social and economic interactions as everyone else. The law had ambitious visions about social equality, but the statute (drafted in 1990) codified a pre-Internet view of the world. The statute refers to “places of public accommodation,” which Congress defined by listing various types of commercial retailers–many of which can only serve customers in physical space (e.g., daycare centers and barber shops).
The ADA doesn’t expressly apply to Internet retailers, and stretching the statutory language to include online-only activities requires awkward interpretive contortions. Nevertheless, a federal court in Vermont recently held that the ADA applies to Scribd. This is the clearest ruling to date indicating that websites must comply with the ADA.
The lawsuit focuses on Scribd’s “NetFlix-for-books” membership program, which allows subscribers to read ebooks from its library for a small monthly fee. The plaintiffs alleged that:
because Scribd’s website and apps are not programmed to be accessible through [screen reader] software, Scribd is denying blind persons access to all of the services, privileges, advantages, and accommodations that Scribd offers and is excluding them from accessing information critical to their education, employment, and community integration.
Scribd responded that Scribd isn’t a physical place and it’s therefore not regulated by the ADA. Many courts, including several federal appellate courts, have said the ADA applies only to physical places, so Scribd’s argument was well-supported by the case law. Rejecting this precedent, the court instead found a 2012 ADA ruling against NetFlix more “persuasive.” The court concludes the “Plaintiffs have sufficiently alleged that Scribd owns, leases, or operates a place of public accommodation.” The court explains:
Construing the list of categories liberally, Plaintiffs have persuasively argued that Scribd’s services fall within at least one of the following categories: “place of exhibition or entertainment,” a “sales or rental establishment,” a “service establishment,” a “library,” a “gallery,” or a “place of public display or collection.”
The court justifies this outcome on policy considerations. The court explains:
Now that the Internet plays such a critical role in the personal and professional lives of Americans, excluding disabled persons from access to covered entities that use it as their principal means of reaching the public would defeat the purpose of this important civil rights legislation.
That’s true, but that doesn’t mean the court reached the right result. The 2012 NetFlix ruling was also anomalous, so this ruling is still inconsistent with most of the precedent cases. It’s also telling the judge can’t pin down exactly how Scribd qualifies as a place of public accommodation. The judge’s confidence that Scribd surely fits the statutory definitions somehow is a reliable indicator of judicial activism.
Such activism has a steep cost. The court’s conclusion seems to apply equally to all other online content retailers–a universe of tens of thousands of sites–and could extend to every online retailer. That makes the opinion’s potential reach breathtaking, with enormous financial implications. Even though websites ought to accommodate blind and deaf users as a matter of good corporate policy (and to serve profitable customer segments), the reality is that many websites do not comply with the ADA today, and the ADA is murky about what compliance requires. As a result, many thousands of websites may have to incur substantial remediation expenses to comply with the ADA. In the interim, this opinion could produce a litigation tsunami against sites that aren’t in compliance.