By Richard Hunt

Two decisions from opposite ends of the country highlight an unresolved issue that should be of real concern to many businesses. In the Northern District of California Netflix persuaded the Court to dismiss an ADA complaint based on the lack of subtitles on its streaming video content. The reason was simple – a “place of public accomodation” within the meaning of the ADA only applies to physical, not virtual places. Thus, as a practical matter services offered through the web are exempt from the accessibility provisions in Title III of the ADA.  At almost the same time the District Court in Massachusetts refused to dismiss an ADA claim against Netflix. The Massachusetts court had no trouble finding that cyberspace can be a “place” covered by the ADA.  It doesn’t appear that any cases in the Fifth Circuit have addressed this precise issue, although at least one district court has rejected the blanket proposition that a “place of public accomodation” must be a physical place.  The Department of Justice is considering a rule that would declare that web sites must be accessible and set standards for that accessibility, but it is a work in progress. For now, at least, the question is unresolved in the Fifth Circuit and most other courts.

This lack of resolution is a big deal for big businesses on the web, but an even bigger deal for small businesses that not may have the resources to upgrade their web pages to comply with the proposed requirements. The problem faced by Netflix was not that their web site was inaccessible, but that the video content sold lacked subtitles for those with hearing disabilities. Video content is pervasive, and if subtitled video is required for web based businesses it will add a new layer of expense. Equally important is the requirement that the web page itself be accessible by vision impaired users. The individual technical requirements do not appear onerous, but small service businesses that rely on the web is the modern replacement for the yellow pages may find the necessary revisions to their existing web sites unreasonably expensive. In addition, the requirements are far less obvious than those related to physical structures. It doesn’t take much imagination to realize that steep slopes and narrow aisles are hard to navigate in a wheel chair.  It is much harder to understand that screen readers won’t skip all the navigation links at the top of a web page and that those using them will find it very tedious to get to the actual content.  This makes small businesses extremely vulnerable to abusive lawsuits, for there is little certainty as to what is required of them or whether they have violated the statute. The entrepreneur who sets up a commercial site using free blogging software and plug-ins probably won’t understand, let alone be able to implement, the detailed accessibility requirements that are in place for government web sites and suggested for all others.  The promise that the internet would encourage entrepreneurship by leveling the field of play between large and small businesses cannot be met if web site design costs become a significant barrier to entry.

The most important problem with the application of the ADA to cyberspace is, however, the admitted fact that the original statute simply did not take the world wide web and its accessibility problems into account. It was written for brick and mortar commerce, not e-commerce. This leaves its application up to the courts, which are limited to deciding matters on a case by case basis and whose assistance is generally invoked by private litigants whose motives may include the recovery of attorney’s fees. Instead of a single coherent statutory scheme business will face a patchwork quilt of individual decisions that may not address the business owner’s situation

Until there are coherent guidelines in place that are useful to small web based businesses, and until Congress amends the ADA to specifically address the situation of small business owners on the web, the federal courts should follow the example in the 9th Circuit and simply find that cyberspace is unique, and that web commerce simply outside the scope of the ADA.