June 21, 2011
Netflix, one of the largest streaming video services on the internet, is being sued by the National Association of the Deaf (NAD).
The issue? Netflix’s lack of online content with closed captioning, with the complaint stating that only around 30% of Netflix’s titles have closed captioning.
NAD is suing Netflix under provisions of 1990’s Americans with Disabilities Act, claiming Netflix has a duty under the ADA to provide equal access to its content to those who are deaf or hard of hearing.
As straightforward as that sounds, this case is anything but.
Instead, it involves complex and novel questions of law, and represents the latest battle in the ongoing war over ADA application to internet content.
First, for the ADA to even apply to Netflix’s internet content, specifically, its “Watch Instantly” feature, NAD has to establish that the internet is a “place of public accommodation” under the ADA.
This is because the ADA requires that public facilities provide access to verbal information on television, films, or slide shows.
The categorization of the internet into the same group would force Netflix to do the same with its online content.
Several other groups have tried the same and failed, though.
Nevertheless, there’s a big difference between those past attempts and NAD’s current one.
From what I can gather, most, if not all, previous attempts to establish the internet as a “place of public accommodation” were by advocacy groups for the blind (a good example of such a case is 2002’s Access Now v. Southwest Airlines).
It doesn’t take much imagination to see the massive implications of imposing ADA accommodations for the blind on all internet content– such a ruling would cripple the web.
Such a possibility would easily scare almost any court out of making that ruling.
However, extending ADA protection to online video content that is already closed captioned when aired on TV or released on DVD doesn’t seem so scary, especially when Netflix has already added closed captioning to 30% of its content.
In addition, the more NAD can link Netflix’s streaming content to areas which the ADA already applies, the better, since it would involve less of an expansion of the ADA’s application, something very appealing to any court (also see the unsuccessful Access Now appeal).
This doesn’t mean that NAD doesn’t have an uphill battle.
It’s still asking the court to expand ADA’s reach where other courts have refused.
This court, like any court, also fears a broad negative impact from its ruling, so the narrower the impact NAD asks the court for in its ruling, the higher its chances of success will be.
Of course, even if the lawsuit fails, it’s very likely that Netflix will eventually have the majority of its content closed captioned.
It just makes business sense for Netflix to expand its market as much as possible, and one such method to this end is offering closed captioned content for the deaf and hard of hearing.
And, according to the complaint, it seems that Netflix still has plans to do this; it may have just been going too slowly for NAD, who then filed this lawsuit to help speed things along.
Ironically, though, NAD’s lawsuit, if successful, could have much broader implications than closed captions on a TV show off Netflix.