, Derry, New Hampshire

August 30, 2012

The ADA can apply to Internet businesses

About the Law
Andrew Myers

---- — Nearly everyone knows that the Americans with Disabilities Act, or ADA, requires employers and those who offer public accommodations to do so in a way that provides access to people with disabilities. The law requires stores, restaurants and other businesses to provide reasonable accommodation to the disabled.

But, does ADA apply to Internet sites?

Netflix offers an online “Watch Instantly” service, allowing people to view online streaming video of movies. A deaf plaintiff sued the company for not providing captioning along with the movies.

Netflix filed a motion to dismiss, claiming that its service is not a place of public accommodation and that therefore the ADA does not apply.

The U.S. District Court in Boston looked at the law and said it’s not that simple. The website could qualify as a “service establishment” covered by ADA because it provides the service of streaming video over the Internet. Or, it could be considered a place of exhibition or entertainment, another category specifically included in ADA, because it displays movies and other content. A third category included in ADA into which the Internet business could be squeezed is that of “rental establishment.” Customers pay to rent video programming.

Netflix also argued they were not covered by ADA because their services were not provided “at” or “in” their business, but at the customer’s home. The court disagreed, holding that ADA covers services “of” public accommodation, not services “at” or “in” a public accommodation. While private homes are not places of public accommodation, the decision held that entities that provide services in the home may qualify as places of public accommodation.

That was the ruling in National Association of the Deaf v. Netflix Inc., decided June 19.

In 2006, the Target chain settled an ADA case brought in California by the National Federation of the Blind.

That lawsuit claimed that Target’s website failed to use invisible “alternative text” code that can be used on Internet sites to allow the blind to use screen reading software to vocalize the text and describe the content of the web page. Target settled the case.

Decisions holding that ADA applies to the Internet exist now in four of the circuits of the federal court system. Decisions in three circuits have held the opposite. So, this may ultimately be decided by the U.S. Supreme Court.

Enacted in 1990 during the fledgling days of the Internet, ADA made no reference to the web. But, the court warned in the Netflix case that in a society where business is increasingly conduced online, excluding Internet businesses from ADA would “run afoul of the law.”