Is Your Site Accessible? Americans with Disabilities Act and Internet Access

The extent to which the Americans with Disabilities Act (“ADA”) applies to the Internet has for years been an important question for web site owners and operators large and small. On June 19, 2012, First Circuit Federal District Court Judge Michael Ponsor, issued a ruling that, if followed, potentially could have a substantial future impact on many businesses who sell their products and services over the Internet.  If you are a retailer, hotel or restaurant that offers products and services on your web site, this is an evolving issue that you should be following.

The Case

The judge’s ruling came in a preliminary motion in the case National Association for the Deaf v. Netflix Inc., 2012 WL 2343666 (D. Mass. June 19, 2012).  The court concluded that Netflix’s web streaming site “Watch Instantly” is within the legal definition of a “place of public accommodation,” and therefore is covered under the ADA.

Although the case is somewhat unique because it arises in the context of a video streaming business application, and not a more common e-commerce website selling goods and services, the court’s ruling is potentially very significant. The court takes a broad step beyond the legal positions reached in a few previous cases that had, to differing degrees, limited the scope of what is included within the law. For example, in 2006, a federal court in northern California held that the ADA applies to the Internet in situations where the Internet is a gateway to a traditional “brick and mortar” store that sells the same products and services. (See National Federation of the Blind v. Target Corporation, 452 F. Supp. 2d 946 (N.D. Cal 2006).

Judge Ponsor’s ruling in the Netflix case clearly indicates that he believes essentially all Internet sites are “places of public accommodation” so long as the sites are participating in any one of the twelve categories listed in the law as “places of public accommodation,” (i.e., lodging, food and drink establishments, entertainment, recreation to name a few). His ruling concludes there is  essentially no distinction between businesses that have a physical presence and those that are purely virtual. From an ADA compliance standpoint, such a conclusion would have a huge impact on how business is currently conducted over the Internet.

Legally, the case has a long way to go before it even potentially has any applicability that would broadly affect the Internet and its users and businesses.  But, if the legal conclusions made in the court’s Order survive the judicial process, and the court’s reasoning is followed by other courts, it could ultimately mean that a very large number of  businesses who sell all kinds of products and services over the Internet would need to make their web sites “accessible” under the law.

What does “Accessible” Mean?

Unfortunately, at this time there are no “safe harbor” guidelines for web site owners to follow to know with certainty how to make their web sites meet the “accessible” standard stated in the law.  Some non-binding standards focusing primarily on the hearing and sight impaired have existing for a number of years and were prepared in connection with a federal statute, commonly referred to as Section 508, that has very limited applicability as part of the federal government’s procurement process. Section 508 does not generally apply to commercial Internet sites. The most commonly recognized set of guidelines are those created by a private entity, the Worldwide Web Consortium, who has crafted a set of Web Content Accessibility Guidelines (WCAG 2.0).  However, none of these have been adopted nor made part of any legally binding laws or regulations.

What Should A Web Owner Do Right Now?

The choice whether to act now, when the case has not been decided,  and no legal standards for compliance have been adopted, involves the obvious risk that things will change.  The case may not proceed to create new law even in the First Circuit, and if appealed the decision may not be upheld. Other Circuits may not follow the decision.  Even if  the case is upheld and followed, the legal standards for “accessibility” that may ultimately be adopted may be quite different from the guidelines that are most frequently cited as likely to be used by the government if and when it creates the regulations.   Yet, businesses may choose to act now to follow the WCAG 2.0 guidelines because they believe it is the right thing to do.  Others may choose to make their best efforts now in order to reduce risk and potential exposure to costly class action lawsuits.  For now, the most practical strategy for most Internet web site owners is to be aware, and be prepared to move quickly to come into compliance once the law is clarified.