Partner Christine Netski is part of a team of lawyers representing the National Association of the Deaf and other plaintiffs in a lawsuit against Netflix, Inc., for failing to provide equal access, through closed-captioning for deaf and hearing-impaired customers, to its internet video-streaming service. In a critical June 19 decision, Massachusetts federal judge Michael Ponsor has denied a motion by Netflix seeking dismissal of the lawsuit, allowing the matter to proceed.

The court rejected each of three major arguments for dismissal made by Netflix:

• Netflix argued that its website and streaming service are not a “place of public accommodation” within the meaning of the Americans With Disabilities Act, under which the lawsuit was brought. But the court agreed with the plaintiffs that the statute’s coverage is not limited to physical places, and that any of several enumerated categories in the statute could, and should, be read to encompass a video-streaming service just as they would a brick-and-mortar video store.
• Netflix protested that since it does not own the copyrights to most of the material available through its streaming service (and, therefore, could not add closed-captioning without permission), it cannot be regarded as the “owner” or “operator” of the streaming service for purposes of the ADA—that is, the party with control over potential modifications to improve accessibility. But the court agreed with the plaintiffs that Netflix’s undisputed ownership of the website and service itself, combined with what the plaintiffs alleged were instances of Netflix’s actually exercising control over captioning of some material, were sufficient to support plaintiffs’ claim.
• Finally, Netflix argued that the issue of closed-captioning for services such as it operates is already being addressed by a 2010 statute enacted by Congress to improve access to communications services and video programming by people with disabilities, and regulations subsequently issued under the statute by the Federal Communications Commission. Permitting the plaintiffs’ lawsuit to continue, Netflix argued, would create an impermissible conflict with this governmental initiative. But the court agreed with the plaintiffs that the new statute was clearly intended “to complement, not supplant, the ADA.”

Read the full decision in National Association of the Deaf v. Netflix, Inc. here.

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Christine M. Netski

Managing Partner

617.227.3030 Email Christine