Online Video and the ADA: How a Landmark Case Changed the Legal Landscape of Closed Captioning

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ONLINE VIDEO & THE ADA:How a Landmark Case Changed the Legal

Landscape of Closed Captioning

Arlene B. Mayerson Directing AttorneyDisability Rights Education & Defense Fund

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Lily Bond (Moderator)3Play MediaMarketing [email protected]

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Online Video & the ADA: How a Landmark Case Changed the Legal Landscape of Closed

Captioning

Arlene B. Mayerson is one of the nation's leading experts in disability rights law. She has been a key advisor to both Congress and the disability community on the major disability rights legislation for the past two decades. At the request of members of Congress, Ms. Mayerson supplied expert testimony before several committees of Congress when they were debating the ADA. She filed comments on the ADA regulations for more than 500 disability rights organizations. Ms. Mayerson has devoted her career exclusively to disability rights practice, representing clients in a wide array of issues. She has provided representation, consultation to counsel, and coordination of amicus briefs on key disability rights cases before the U.S.

Supreme Court. She was appointed by the Secretary of the U.S. Department of Education to the Civil Rights Reviewing Authority, responsible for reviewing civil rights decisions of the Department.

Ms. Mayerson is also a John and Elizabeth Boalt Lecturer in disability law at Berkeley Law, University of California, Berkeley (Boalt Hall). She has published many articles on disability rights and is the author of a comprehensive three-volume treatise on the ADA: Americans with Disabilities Act Annotated-Legislative History, Regulations & Commentary (Clark Boardman Callaghan, 1994), which sets forth the legislative history and regulations for each provision of the ADA.

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AGENDA• Overview of the Americans with

Disabilities Act (ADA)• Title III of the ADA: Public

Accommodations• National Association of the Deaf (NAD) vs.

Netflix• Court decision• Implications for other industries• Prepared Questions• Audience Q&A

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ACCESS TO INTERNET

48 MILLION DEAF AND HARD OF HEARING

AMERICANS

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ADA 1990Concept: Create national prohibition against discrimination on the basis of disability equal to the protections of other minorities (race, ethnicity, religion) and women.

Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213

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Public Accommodations

Look to Title II of the 1964 Civil Rights Act prohibiting discrimination on the basis of race, ethnicity and religion in public accommodations:

• inns, hotels, motels, or other organizations that provide accommodation to temporary visitors

• restaurants, cafeterias, lunchrooms, lunch counters, soda fountains, or other facilities providing food for consumption

• motion picture houses, theaters, concert halls, sports arenas, stadiums or other places of exhibition or entertainment

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Original Definition in the ADA

All businesses to which the public is invited.(pastrami but not prescriptions)

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Enumerated Public Accommodations in

ADAPLACE OF PUBLIC ACCOMMODATION means a facility, operated by a private entity, whose operations affect commerce and fall within at least one of the following categories:

(1) An inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of the establishment as the residence of the proprietor;

(2) A restaurant, bar, or other establishment serving food or drink;

(3) A motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;

(4) An auditorium, convention center, lecture hall, or other place of public gathering;

(5) A bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;

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(6) A laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;

(7) A terminal, depot, or other station used for specified public transportation;

(8) A museum, library, gallery, or other place of public display or collection;

(9) A park, zoo, amusement park, or other place of recreation;

(10) A nursery, elementary, secondary, u ndergraduate, or postgraduate private school, or other place of education;

(11) A day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and

(12) A gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation. 42 U.S.C. § 12181 (7)

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Biggest Hurdles for Netflix Case

• Internet only business (bad case law - forum critical)

• Entertainment at private residences (not “public”)

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Netflix Arguments• No PLACE of public accommodation

• ADA was intended to increase access to activities in the community for people with disabilities

• Therefore, it follows that the term PLACES OF PUBLIC ACCOMMODATION contemplated a physical structure in the community in which people gather

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Making the Case• Internet not contemplated in

1990• Activities listed in Title III now

take place on Internet• Netflix is providing a service, not

just passing through a good• Integration still implicated, even

though the entertainment is primarily private

• Peer communications, family and friends gatherings at home. 13

Netflix’ StatementsWatch what you want, when you want by streaming instantly over the Internet right to your TV.

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NETFLIX• Netflix revolutionizes the way people watch TV

shows and movies• Unlimited Movies and TV Shows Streaming

Instantly• More than 33 million streaming members.

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Netflix DecisionJudge Ponsor denied the motion, stating 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 purposes of the ADA and 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.”

Moreover, Judge Ponsor stated that the fact that the ADA “does not include web-based services as a specific example of a public accommodation is irrelevant” since such web-based services did not exist when the ADA was passed in 1990 and because “the legislative history of the ADA makes clear that Congress intended the ADA to adapt to changes in technology.”

National Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2nd 196 (D. Mass. 2014)

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Netflix Decision Catalyst

• Other streaming companies

• Online education• Health Care• Employment (intranet

and trainings)• Others?

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Question #1

Harvard and MIT were recently sued for violating the ADA by not providing closed captions for their online video content. How do you think the Netflix case will impact a case like this one?

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Question #2

There has been some confusion about conflicting rulings, such as the case of Donald Cullen vs. Netflix, where the 9th Circuit ruled that the ADA does not apply. How should people involved in publishing online video reconcile these rulings, and do you have any insight on when these issues will be resolved definitively?

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Question #3

The ADA specifically calls out private places of education as “places of public accommodation”. To what extent does the ADA apply when it comes to the size and impact of the organization? For example, is a giant organization like University of Phoenix implicated more than a small e-learning website with 100 how-to videos or so? Or, does payment matter? I.e., someone who pays for University of Phoenix versus someone who signs up for Khan Academy, which is free?

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Question #4

One of the issues with captioning that comes up a lot has to do with quality and accuracy. For example, speech recognition can provide closed captions very inexpensively, but many people contend that the quality is inadequate. Last year the FCC put out a ruling that specifically defined the quality requirements. However, those only apply to content that aired on television. Does the ADA address this?

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Presenters

Arlene B. MayersonDirecting AttorneyDisability Rights Education & Defense Fund

Lily Bond3Play MediaMarketing [email protected]

Audience Q&AUpcoming Webinars:

10/1: Free Tools for Testing Website Accessibility

10/8: 10 Tips for Creating Accessible Online Course Content

10/22: Understanding Closed Captioning Standards

11/5: Implementing Universal Design for Online Learning Accessibility

You can register for these free webinars at: www.3playmedia.com/webinars/