by Andrew Kirkpatrick

 Comments (10)


June 28, 2012

Creative Commons Attribution 3.0 License

Content in this blog post is licensed under a Creative Commons Attribution 3.0 License. Example code provided is licensed under Adobe’s Creative Commons Plus License.

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.


  • By Mike Moore - 4:44 PM on June 28, 2012  

    Thanks Andrew, I have seen a lot of misinformation being bantered around as fact. No large player in the ecommerce space should have been the least bit surprised by the decision. I just wish that it was not taking so long to get the regs in place. In the mean time there are well established standards for accessibility. If Netflix had implemented WCAG 1, WCAG 2, or 508 they would have included captions and would not be facing this lawsuit. As you pointed out the justice department put everyone on notice that title III includes web sites as places of public accommodation. Site managers need to choose a standard and implement it, I suggest WCAG 2 but implementing and standard would be a positive defense against a title III complaint.

  • By Heather Stubbs - 4:51 PM on June 28, 2012  

    Thank you for this information. I have so many web sites I could mention who disreguard this judges ruling, and I’m so glad to see he sides with us. Being blind, I find it hard to understand why so many people deny us access to their web sites’ videos and audios, when it’s very clear that we all benefit if everyone has equal access to them. Please keep hanging in there with us. Also, could you email me a copy of this article? Thanks very much.

  • By Rob Sinclair - 5:43 PM on June 28, 2012  

    Nice summary of the situation Andrew. Thanks for providing a clear summary of the evolving global public policy landscape.

  • By John Foliot - 6:51 PM on June 29, 2012  

    Hey Andrew,

    Thank you.

    After reading the recent Ars Technica article the other day I was close to being physically sick at the tone and comments of that entire piece. Never one to shy away from being outspoken, that article left me so deflated that I had neither the will nor fortitude to take them on (rare, I know). Your overview of the current legislative landscape, and your words around our collective strides forward were just the right tonic this time ’round – even jerks like me get tired of the fight some days.


    • By AWK - 6:57 PM on June 29, 2012  

      Thanks for the kind words John – that means a lot!

  • By Peter Casey - 7:47 AM on June 30, 2012  

    Put your money where your mouth is and dedicate some actual resources to making Adobe Digital Editions truly accessible. Being limited to JAWS and NVDA is ridiculous and functions poorly at best. A “Read Aloud” function, similar to Reader, has been demanded by your customers for YEARS. A company with your resources could have long ago added this functionality if it decided to devote real effort to get it done. That you are on the 4th preview revision of your “accessible” version, yet it still only works with a very limited selection of outside software, needs screen focus to keep reading and works sporadically at best speaks volumes to your lack of commitment. You want us to believe you care about accessibility? Then show it. A half-hearted poorly-implemented effort progressing at the speed of frozen molasses after years of complaints and requests is not showing it.

    • By Bryan Jones - 9:15 PM on July 12, 2012  

      Well said, Peter!

      An Adobe blog post trumpeting support for accessibility standards seems nothing more than another attempt to divert attention from the underlying problem, which is Adobe’s refusal or inability to fix the myriad access shortcomings that continue to plague the company’s existing products.

      It seems evident that the lack of dedication to accessibility runs in Adobe’s veins and is part of the culture at every level of the company. The “frozen molasses” pace of progress will not change unless and until somebody at a high enough level makes it a priority a’la what happened at Apple over the past several years..

      Even in the public spaces where one would think the folks at Adobe would make an effort to engage with End-Users, there is a disturbing lack of response and dialog. Within Adobe Labs’ own support forums dedicated to the aforementioned ADE 1.8, questions rarely earn a response from an actual Adobe employee:

      Adobe has yet to release the accessible version of Flash Player for Mac they announced more than 2 years ago, and they have long ago stopped responding to requests regarding the status of the product:


      • By AWK - 10:41 PM on July 12, 2012  

        Bryan (and Peter also),
        I can understand your skepticism, but disagree in most of your analysis. Adobe has made great improvements in tools for creating accessible content, including PDF, HTML, and EPUB. We’ve made continual progress in improving the accessibility of Adobe Connect. We’ve worked to make delivering closed captions for video easy for content providers. We’ve worked with the W3C to produce techniques for making PDF documents accessible. The improvements to accessibility in Digital Editions, while not everything that you want, provide access to ebooks for many people, and represents and area of ongoing work. I want changes and features as fast as everyone else (immediately!) but change takes time, and usually longer than you want.

        As far as the accessible version of the Flash Player for the Mac, we announced at CSUN about a change in focus for the Flash Player – the Flash Player focus is on casual gaming and video – and the current guidance is to use native controls rather than embedding them within the Flash Player. As a result, the plan to deliver a Flash Player for the Mac with accessibility support was suspended.

        A change in strategy doesn’t mean a lack of interest in accessibility however. We will continue to work on accessibility and working to help our customers deliver great and accessible experiences for all users. We’re interested in all productive feedback that you or anyone else has to offer.

  • By Paul P. Schafer - 9:04 PM on July 13, 2012  

    Andrew, I enjoyed reading your post and above response. Oh, and even though it isn’t nearly as accessible as it should be, I still enjoy reading epub books mainly from using ADE Preview v1.8.x with Voiceover on my Macbook Pro — in fact, just purchased my 73rd book or so since ADE v1.8 was released about a year ago…

    So, is Continuous Reading coming soon under Mac OS X??? After all, I don’t want to add RSI to blindness…

    Thanks, and Live Well! —Paul

  • By Paul P. Schafer - 9:11 PM on July 13, 2012  

    Oops, that should have been!

    Thanks, Pleasant Weekend/Summer, and Live Well! —Paul