Second Federal Court Tackles Absence of Closed Captions in Netflix Web-Streaming

In the wake of a federal district court in Massachusetts rejecting arguments by Netflix that its “Watch Instantly” streaming website is not a “place of public accommodation” under the Americans with Disabilities Act (ADA), a federal court in California reached the opposite conclusion. In Cullen v. Netflix, the United States District Court for Northern District of California ruled that “places of public accommodation” under the ADA are limited to “actual physical places” and dismissed allegations that Netflix, in failing to caption streamed video, had violated state and federal disabilities and other laws. The distinctly different decisions reached by the courts in National Association of the Deaf v. Netflix (D. Mass) and Cullen v. Netflix (N.D. Cal.) underscore the unsettled nature of the law in this area. Moreover, the new Netflix decision in Cullen reinforces previous ADA cases–with which NAD v. Netflix broke–that largely rejected the proposition that websites could be “places of public accommodation” where measures like closed captioning (or video description) can be required.

Cullen involved a putative class action against Netflix under California's Unruh Civil Rights Act and Disabled Persons Act, for failure to provide full and equal access to its online video-streaming services based on alleged violations of the ADA by Netflix for failing to closed-caption the videos. Though the Cullen court noted the recent Massachusetts decision in NAD v. Netflix, it concluded it was bound by Ninth Circuit precedent that websites are not places of public accommodation, and accordingly granted Netflix’s motion to dismiss.
 
The court also held Cullen could not state an Unruh Act claim against Netflix independent of the ADA claim, because California law requires intentional discrimination. While Netflix’s failure to closed-caption streamed videos may have a disparate impact on hearing-impaired individuals, the court held, plaintiffs failed to demonstrate willful, affirmative misconduct as is necessary to sustain a cause of action. Finally on the disabilities-related claims, the court also held that a claim under California’s Disabled Persons Act independent of the APA claim did not lie because plaintiff failed to cite any California standards in this area that exceed the ADA, as the state law requires for such claims.

NAD v. Netflix was significant because previous ADA cases had largely rejected the proposition that websites could be “places of public accommodation” where measures like closed captioning (or video description) could be required. Also significant was that, because there were questions raised in NAD regarding whether the Communications Video Accessibility Act and implementing regulations adopted by the Federal Communications Commission (FCC) preempted ADA online closed-captioning claims, the Department of Justice, which is charged with implementing the ADA, weighed in, in favor of NAD. Cullen did not include any input from DOJ, and is more consistent with other decisions in this area regarding online accessibility, a topic also currently being considered in a Department of Justice rulemaking.

Coming as hard on the heels of NAD v. Netflix as it did, Cullen suggests that the Massachusetts case may simply be an outlier and not an indication of evolving legal views tied to advanced technology. Nevertheless, between the diverging stances the federal courts have taken, DOJ’s continued exploration of online captioning and similar website accommodations, and the extent to which, if it stands, the NAD decision could require changes at Netflix’s site(s) that affect more than just Massachusetts viewers, this is an area that warrants careful monitoring.