The Americans With Disabilities Act of 1990 (ADA), back when it came out, opened a flood of lawsuits against restaurants, offices, and other small business establishments for sometimes legitimate, but often overly knit-picky, claims of ADA non-compliance (see here for a list of abusive ADA lawsuits). Now a District of Massachusetts judge has ruled that websites are “places of public accommodation” and must also, therefore, comply with the ADA. National Association of the Deaf v. NetFlix, Inc., 11-cv-30168 (D. Mass., June 19, 2012).
Here, the National Association of the Deaf sued NetFlix for failing to Close Caption some of its “Watch Instantly” movies. NetFlix responded with the obvious: A website is not a “place of public accommodation” within the meaning of the ADA and, therefore, does not fall under the ADA.
Not so, says the Court:
The ADA lists twelve categories of entities that qualify as places of public accommodation. 42 U.S.C. § 12181(7). Plaintiffs argue that the Watch Instantly web site falls within the scope of four of these categories: “place of exhibition and entertainment,” “place of recreation,” “sales or rental establishment,” and “service establishment.” Id. According to Plaintiffs, Defendant is a business that provides a subscription service of internetbased streaming video through the Watch Instantly web site and, as such, is analogous to a brick-and-mortar store or other venue that provides similar services, such as a video rental store.
My colleague Eric Goldman points out on this Technology & Marketing Law Blog that the Court’s ruling relies on faulty precedent:
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.
Nevertheless, until this ruling is successfully appealed, it seems that website businesses will have to steel themselves against the same potentially abusive ADA plaintiffs that we see going after small businesses in the physical sphere.
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