Last week, a U.S. federal judge allowed a Lawsuit that would require Netflix to include closed captioning on all its Watch Instantly content to move forward, denying Netflix’s request for the dismissal of the case.

This comes after a Californian court refused to dismiss a lawsuit by GLAD against CNN for its refusal to add closed captioning to its news clips back in February.

Websites are covered by the ADA

The Netflix Captions suit ruling is another clear support for the legal case behind web accessibility in the USA, as it gives a clear ruling on the application of the ADA to the web.

While Netflix had argued that the ADA only applies to physical places and shouldn’t apply to a web-only business, the U.S. District Court of Massachusetts judge stated in his decision that:

“the legislative history of the ADA makes clear that Congress intended the ADA to adapt to changes in technology.”

According to the judge:

“In a society in which business is increasingly conducted online,” the ADA would only be compromised by ”excluding businesses that sell services through the Internet.”

As Arlene Mayerson, attorney for the Disability Rights Education and Defense Fund, says:

“By recognizing that websites are covered by the ADA, the court has ensured that the ADA stays relevant as much of our society moves from Main Street to the Internet.”

Has the lawsuit already had most of its intended effect?

What is particularly interesting in this case is that, possibly as a result of this lawsuit, Netflix is already doing more than almost any other video-on-demand supplier to enrich its content with captions / subtitles.

In the last year it has:

• added caption / subtitle support to its iPhone and iPad apps; and
• reached its target of 80% of the hours streamed in the US being of content with captions or subtitles available (in December 2011).

Could a similar lawsuit happen in the UK?

In comparison, Netflix’s main rival in the UK – Lovefilm – doesn’t yet include closed captions (or subtitles, as they are usually called in the UK) on its LoveFilm Instant service on any platform, despite this having been something highlighted by Hearing Impaired people through the RNID over a year ago and continually kept in the public eye by Pesky People’s #subtitlesnow campaign.

LoveFilm’s reasoning for its lack of captions, stated in May 2011 as a response to Craig Butchers initial complaint, was that it was:

“… prohibitively costly, and likely to be breach of license agreements, for us to unilaterally develop and implement open or closed captioning for our on demand titles but we will continue to raise this with our licensors.

It is worth noting that nearly our entire VOD catalogue is duplicated by our DVD catalogue and most DVDs have some form of English language subtitling and, in some cases, full captioning.”

With Netflix’s progress in providing captions, proving that it can be done in terms of license terms and costs, this excuse is beginning to look less and less reasonable.

LoveFilm’s argument – that people who need captions can get that facility through their DVD catalogue – has echoes of the argument that some mobile app owners have used to justify the lack of accessibility of their apps: that the service provided by their app is also available in an accessible form via their website.

However, as Martin Sloan blogged on that issue:

“service providers do have a duty, under the reasonable adjustments obligation, to continue to review the means through which they provide services and consider whether any adjustments can be made which will improve the accessibility to users with disablities (this obligation does not apply to potential age discrimination). This is an evolving duty, and so requires service providers to take advantage of new technologies and techniques – for example, new hardware or operating system features, and new W3C standards.”

So, while precedents set under the American ADA do not apply in the UK, the similarities between the judge’s ruling that the ADA’s intention is to adapt to changes in technology, and the Equality Act’s clear evolving duty on service providers to take advantage of new technologies, should be enough to give LoveFilm some pause for thought.

It’s only UK disability lobbyists’ culture of ‘work with…’ rather than ‘litigate against…’ that is stopping a similar captioning lawsuit happening here in the UK.

And, as the RNIB BMI-baby lawsuit seems to indicate, a culture of litigation seems to be emerging in the UK, based on the successful results of disabled groups mobilising in the US.

Could provision of captions/subtitles be a USP for Netflix over LoveFilm?

For now, despite the ongoing lawsuit against it, Netflix is still the best bet for subtitled film and TV from paid-for video-on-demand services in the UK, as it is in the US.

For people who are hard of hearing, this gives Netflix a unique selling point over LoveFilm.

And, bearing in mind that the same technology used for closed-captions for the original language of a film or TV programme can be used to caption it into other languages, closed-captioning technology may be a strategically essential element to enable organisations like Netflix and LoveFilm to extend their services into countries outside the English-speaking world.

In the battle for distribution of online video globally, as understood by YouTube, closed-captioning is a real enabler.

How should LoveFilm and other online streaming services react to this case?

Like all organisations that own websites, video-on-demand services would do well to further consider how to balance the needs of their disabled users with the needs of their other users, and how to balance the priority of creating accessibility USPs against USPs in available content, available platforms etc.

Based on the legal and business case for closed-captions, my recommendation is that all video-on-demand services place a higher priority on investigating how to put in place the right workflows to ensure as much of their content that has captions / subtitles on DVDs has the same captions / subtitles online.

As Hassell Inclusion were instrumental in helping BBC iPlayer to achieve close to 100% subtitles for all its TV and film content online, we’d be happy to help any online video providers investigate how the inclusion of captions could be added to their business-as-usual video production and distribution processes to gain competitive advantage.

Please contact us if we can be of any help.

9th October 2012 update – case settled

The captions lawsuit between NAD and Netflix was settled on 9th October, with an agreement for Netflix to achieve 100% captioned programmes within 2 years and to pay costs of $755,000 in legal fees.

For more, see my analysis blog on what does this mean for Netflix, NAD, the hard-of-hearing people that organisations like NAD represent, and the web industry in general?

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