Netflix has established itself as the world’s premier on-demand Internet streaming media service, with thousands of movies and TV episodes available for unlimited and instant download and more than 33 million subscribers around the world. Yet, despite its overall popularity, over the past year Netflix has found itself defending against allegations that its “Watch Instantly” video stream service is statutorily discriminatory against deaf and hearing-impaired subscribers in Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196 (D. Mass. 2012) and Cullen v. Netflix, Inc., 880 F. Supp. 2d 1017 (N.D. Cal. 2012).
In both Nat’l Ass’n and Cullen, the district courts analyzed whether Netflix violated the Americans with Disabilities Act (ADA), which requires that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). The basis for both lawsuits originated from Netflix.com offering only a limited amount of streaming media content available with closed captioning to assist the deaf and hearing impaired by providing readable text of the audio of movies and TV programs. According to the plaintiffs in both cases, the unavailability of closed captioning for all streaming media content on Netflix.com constituted a failure by the company to provide equal access to deaf and hearing impaired subscribers in violation of the ADA’s prohibition against discrimination on the basis of a disability.
Thus, the central inquiry facing the two district courts in Massachusetts and California was whether an Internet website fell under the umbrella of a “place of public accommodation” pursuant to the ADA.
Netflix’s Streaming Service Discriminatory in Nat’l Ass’n
In Nat’l Ass’n, the plaintiffs National Association of the Deaf, the Western Massachusetts Association of the Deaf and Hearing Impaired and Lee Nettles, a deaf person and a member of both non-profit organizations sought injunctive and declaratory relief requiring Netflix to provide closed captioning for all of its Watch Instantly content on its website. Netflix responded by filing a motion for judgment on the pleadings, arguing that the plaintiffs’ complaint failed to allege sufficient facts to establish a discrimination claim under the ADA.
The court held that Netflix.com was a place of accommodation underneath the ADA and rejected the motion for judgment on the pleadings. In reaching this conclusion, the court relied heavily on Carparts Distrib. Ctr. v. Auto Wholesaler’s Assoc., 37 F.3d 12 (1st Cir. 1994)(holding that places of public accommodation are not limited to actual physical structures), to rebut Netflix’s argument that websites and streaming video services were not intended to be places of public accommodation under the ADA. Citing Carparts, the court noted that “[i]t would be irrational to conclude that persons who enter an office to purchase services are protected by the ADA, but persons who purchase the same services over the telephone or by mail are not. Congress could not have intended such an absurd result.” Nat’l Ass’n, 869 F. Supp. 2d 200.
According to the court, the Carparts reasoning was also applicable to web-based services. Therefore, Netflix’s “Watch Instantly” website could potentially qualify for as many as three of the twelve enumerated ADA categories for “places of public accommodation”: A “service establishment” because subscribers are allowed to access the streaming video service via the internet; a “place of exhibition or entertainment” as Netflix.com offers movies, TV shows, and other media content; and a “rental establishment” in that Netflix engages subscribers to rent movies and TV shows.
The court also found unpersuasive Netflix’s argument that because the Watch Instantly website is accessed only in private residences, it could not be considered a place of public accommodation. As observed by the court, “the ADA covers the services “of” a public accommodation, not services “at” or “in” a public accommodation”. Id. at 201.
Cullen Court Finds Netflix’s Streaming Service Non-Discriminatory
Faced with essentially identical facts and claims as those presented in Nat’l Ass’n, the court in Cullen arrived at a different conclusion in regards to Netflix’s obligation to provide its subscribers with closed captioning for media content on its Watch Instantly website.
The named plaintiff David Cullen – representing a class of deaf and hearing-impaired Netflix subscribers – brought suit alleging violations of California’s Unruh Civil Rights Act (Unruh) and Disabled Persons Act (DPA), which by their statutory definitions are only violated when the ADA is violated. Netflix responded with a motion to dismiss Cullen’s action.
Despite acknowledging the decision in Nat’l Ass’n, the Cullen court recognized that as a district court, it was bound to adhere to Ninth Circuit precedent in the absence of a Supreme Court ruling on an issue. 880 F. Supp. 2d 1023. Consequently, the court relied heavily on the standard set forth in Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000), which held that only actual physical places could be considered places of public accommodation under the ADA.
In consideration that the media content on Netflix’s Watch Instantly website could only be accessed by subscribers via an internet connection, the court found that Netflix.com was not “an actual physical place”. Therefore, under the precedent established by Weyer, the court held that Netflix.com was not a place of public accommodation and granted Netflix’s motion to dismiss.
Future Implications of Both Cases
In an increasingly wireless world where many businesses offer diverse entertainment, services and products for purchase by consumers online, the development of the law on the issue of whether a place of public accommodation must be a physical establishment under the ADA will be a significant one to follow. As demonstrated in Nat’l Ass’n, some courts might consider the modern climate in which business and service transactions occur and apply the ADA to provide meaningful protections to disabled online consumers. Other courts might feel compelled to ignore the growing trend of e-commerce and follow traditional precedents, as was the case in Cullen. Either way, given the uncertainty that exists in regards to how courts will interpret and rule on the place of public accommodation issue, one thing appears clear: web-based businesses should begin to consider how to make their websites and services more accessible to the disabled in order to avoid finding themselves potentially defending against a violation of the ADA.