Archive for June, 2012

June 28, 2012

Ruling on Accessibility and the ADA

The United States District Court in Massachusetts ruled June 19 on a motion to dismiss a suit brought against Netflix by the National Association of the Deaf (NAD) and others. The suit is about Netflix not providing enough captions for videos delivered via the “Watch Instantly” site, but the ruling addresses the applicability of the Americans with Disabilities Act (ADA) for electronic accessibility in general, not just limited to access issues for users who are deaf or hard of hearing. The dispute on the applicability of the ADA to the internet and electronic media has been brewing for several years, with cases against the Metropolitan Atlanta Transportation Authority, Southwest Airlines, and Target all part of the long-term debate. While the charge of judicial activism has been leveled against this decision, supporting precedents seem to exist which support the judge’s ruling, and the Department of Justice’s statement of interest provides a clear view of the DOJ’s position in support of this decision. The implications of this ruling are significant, but also fit well within the context of additional policy work in the US and abroad.

A key issue which is core to the debate is whether a web site or any other internet-delivered service can be regarded as “a place of public accommodation”. In the Netflix case, the judge ruled that the website delivering movies to the customer qualifies as a public accommodation. Specifically, the judge indicated:

Netflix, which operates its website and Watch Instantly service through computer servers and the Internet, is a public accommodation subject to title III of the ADA, even if it has no physical structure where customers come to access its services.

Establishing electronic resources as a place of public accommodation means more than a requirement for captioning, it also means that other users with disabilities need to have access to the information and services provided. Electronic content can readily be made accessible to users with disabilities, whether the user is deaf, blind, unable to use their hands, or has a variety of other disabilities or combinations thereof.

A growing policy emphasis on accessibility

This ruling comes at a time when there is greater evidence of expanding support for accessibility globally as well as within the United States.

The court made reference to a Department of Justice effort to release policy guidance to clarify that the ADA does apply to electronic services such as the web – the DOJ issued an advance notice of a ruling on the 20th anniversary of the signing of the ADA. This update to the ADA proposed to apply the W3C WCAG 2.0 specification as the standard for accessibility, which includes requirements for video accessibility such as captioning. The court writes:

Contrary to Defendant’s unsupported assertions, the Department’s ongoing regulatory developments support that Netflix is a public accommodation subject to title III of the ADA. The Department is currently developing regulations specifically addressing the accessibility of goods and services offered via the web by entities covered by the ADA. The fact that the regulatory process is not yet complete in no way indicates that web services are not already covered by title III.

In addition to the DOJ effort, President Obama signed the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and last month sent the Convention to the Senate to be ratified. In doing so, the US would be committing to “take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems” (UNCRPD, Article 9). Separate from the UNCRPD, the United States Access Board is preparing to release updated standards for section 508 of the Rehabilitation Act which will likely also align with WCAG 2.0 criteria, and the FCC recently published regulations for access to broadcast video (not including non-broadcast video, user-generated video, or theatrical movies), including regulations which address access to the video when delivered via the internet after or concurrent with the broadcast delivery.

Outside of the United States, 152 other countries have signed (and 115 have ratified) the UNCRPD, and efforts to expand existing and develop new policies are well underway.

Why do we care about accessibility?

It isn’t hard to find opposition to this ruling (1, 2), but the most important point remains – that people with disabilities deserve equal access to information and services, whether provided via the internet or in a physical location. Access equals opportunity and self-reliance, whether for a person seeking accessible educational materials to help prepare for employment, accessible video for entertainment and social connections with others, or access to necessary goods and services without needing to depend on the help of others to arrange or obtain them. Access leads to employment, and active participation in society. Accessibility has costs, although less when considered early in any process and less at scale, but whatever the costs of providing access, the cost of not providing it is in the long run greater for society.

No major web sites, applications, or mobile apps are perfectly accessible, including Adobe’s. But Adobe and many others are making continual improvements and pushing toward greater access. We’ve worked on not only our own products but on accessibility standards and policies in the United States and around the world, and continue to seek ways to enable our customers to support accessibility with greater ease and effectiveness on their part. There is more work to do, but we know why we’re doing it and are committed to continue working for equal access for all

Note: I am not a lawyer, so anything in this post that sounds like a legal interpretation should not be construed as actual legal advice, just as the considered opinion of an interested party.

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