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The Growing Web of Public Accommodation under the ADA

By September 14, 2012No Comments

A recent Federal District Court decision in Massachusetts held that Netflix’s “Watch Instantly” web site may be a place of public accommodation under the Americans with Disabilities Act.  The lawsuit, National Association of the Deaf v. Netflix, Inc., was filed on behalf of deaf and hearing-impaired individuals who seek a court order compelling Netflix to provide closed captioning for all of its “Watch Instantly” content.

The Court’s decision was issued in response to Netflix’s motion to dismiss the case on the grounds that, among other things, a web site could not be a “place of public accommodation” that was subject to the ADA.  Netflix argued that the “Watch Instantly” site and other web-based businesses were not actual physical structures and were not specifically identified as places of public accommodation in the statute.

The Court was not persuaded, and it based its denial of Netflix’s motion on the legislative history of the ADA, which clearly set out Congress’ intent that the ADA “should keep pace with the rapidly changing technology of the times.”  Even though web-based video streaming services did not exist at the time the ADA was enacted, Congress viewed the statutory protections to disabled individuals as extending to emerging and yet to be developed technologies.

In addition, the Court found that the mere fact that web-based video services were not specifically listed as places of public accommodation in the ADA was not compelling because those services were part of the general categories enumerated in the statute.  The Court held that “Watch Instantly” may qualify as a “service establishment,” a “place of exhibition or entertainment,” and a “rental establishment,” all of which are types of businesses that fall under the ADA.

The Court noted, as well, that a “place of public accommodation” need not be an actual physical location.  Netflix argued that because individuals access its services in the home, and not in public spaces, it could not be a place of public accommodation.  The Court disagreed and drew comparisons to other businesses – plumbers, pizza delivery services, and moving companies – that are undisputedly subject to the ADA, but whose services are used in people’s homes.

Some commentators have expressed alarm over this decision, mainly out of a concern that requiring web-based businesses to accommodate consumers’ disabilities will cause undue expense and ultimately restrict the variety of internet content for everyone.  (See commentary here and here.)

While the future remains to be seen, it is worth keeping in mind that this decision came in the context of a preliminary motion on the pleadings, where the Court did not consider such issues as whether the requested accommodation placed an undue burden on Netflix.  In fact, the Court took pains to clarify that, despite finding that the “Watch Instantly” service was a place of public accommodation, the plaintiffs were by no means assured of victory.

More broadly speaking, the takeaway message is that, whether or not a particular website will be required to provide accommodations, individuals with disabilities can now invoke the ADA in their efforts to make the internet more accessible.   Internet businesses would be wise to brace for changes that may permit greater access to their content and services.  Given that the internet has become a major – if not the major – outlet for entertainment, commerce, and communication for all people, advocates for the disabled believe that the marginal cost of including the handicapped is fairly born by those profiting from the internet boom.  They argue that including those with disabilities is a move toward greater accessibility and inclusion – core principles that underscored the signing into law of the ADA by President George H. W. Bush in 1990.