Is the Internet a place of public accommodation under the Americans with Disabilities Act?

Courts across the nation have been split on the issue. But a recent decision from a U.S. District Court judge in Massachusetts that the ADA covers online-only businesses like Netflix has caught the attention of the business community.

“In a society in which business is increasingly conducted online, excluding businesses that sell services through the Internet from the ADA would ‘run afoul of the purposes of the ADA and would severely frustrate Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges and advantages available indiscriminately to other members of the general public,’” Judge Michael Ponsor wrote in National Association of the Deaf v. Netflix.

Christine M. Netski, a partner at Sugarman, Rogers, Barshak & Cohen in Boston who represents the plaintiffs, said the ruling makes clear that “the ADA must be interpreted in a manner that keeps pace with how business is transacted in the Internet age and ensures that consumers with disabilities have equal access to web-based services like those offered by Netflix.”

The decision is the first case in the country to apply the ADA to Internet-only businesses, said Charlotte Lanvers, a staff attorney at the Disability Rights Education and Defense Fund Inc. in Berkeley, Calif., which also represents the plaintiffs.

The ruling could have a significant impact on companies conducting business solely on the web, which could face more suits over the accessibility of their online offerings.

With e-commerce becoming more and more prevalent, courts are recognizing that “websites are the new frontier of the ADA,” said Martin H. Orlick, a partner at Jeffer, Mangels, Butler & Mitchell in San Francisco, who chairs the firm’s ADA compliance and litigation practice. “When the ADA was enacted in 1990, there was no such thing as the Internet or cyber-accessibility.”

‘Public accommodation’

In the Netflix case, a deaf plaintiff sued the online streaming service for not providing captioning for its “Watch Instantly” service.

Netflix filed a motion to dismiss, arguing in part that the service was not a place of public accommodation under the ADA.

But Ponsor disagreed, determining that the “Watch Instantly” feature fell within “at least one, if not more” of the categories covered by the ADA.

First, he said, “the web site may qualify as: a ‘service establishment’ in that it provides customers with the ability to stream video programming through the Internet; a ‘place of exhibition or entertainment’ in that it displays movies, television programming, and other content; and a ‘rental establishment’ in that it engages customers to pay for the rental of video programming.”

Further, even services accessed in a private residence constitute a “place of public accommodation” under the act, the court said.

“The ADA covers the services ‘of’ a public accommodation, not services ‘at’ or ‘in’ a public accommodation. … While the home is not itself a place of public accommodation, entities that provide services in the home may qualify as places of public accommodation,” Ponsor wrote.

In a Statement of Interest that the U.S. Department of Justice filed in the Netflix case, DOJ attorney Amanda Maisels emphasized the purpose behind the act.

Congress intended that “place of public accommodation” be “construed liberally consistent with the intent … that people with disabilities should have equal access to the array of establishments that are available to others who do not currently have disabilities,” Maisels wrote.

At the time, the House Committee on Education and Labor stated explicitly that the definitions in the ADA “should keep pace with the rapidly changing technology of the times,” she said in the statement.

Maisels did not respond to requests for comment for this story.

Netflix filed a motion requesting interlocutory appeal of Ponsor’s decision, calling the ruling “the broadest-ever extension of the ADA’s scope, thereby opening the door to amorphous and seemingly limitless regulation of the Internet in a way Congress did not envision and no other court has accepted.”

But Ponsor quickly denied the request, stating that the decision “does not present the exceptional circumstances justifying interlocutory appeal.”

Discovery is currently stayed pending settlement negotiations, Lanvers said.

Representatives from Netflix did not reply to requests for comment.

Guidance sought

In 2006, a U.S. District Court in California was the first court to apply the ADA to a website. Emphasizing the connection between the goods and services available on Target.com and in the company’s brick-and-mortar stores, the court found the company’s website was a place of public accommodation for purposes of the ADA.

Target subsequently settled the case, paying $6 million and making a number of changes to its website.

But the Target case was the turning point, Orlick said, and courts began to recognize that the ADA could apply to situations other than architectural barriers to buildings.

Since then, the 1st, 2nd, 7th and 11th circuits have all ruled that the ADA applies to the Internet, said David Tarrien, a professor at the Thomas M. Cooley Law School in Grand Rapids, Mich., while the 3rd, 5th and 9th circuits have held to the opposite.

Given the stark split among the circuits, and the importance of balancing accessibility and business needs, the issue could wind up before the U.S. Supreme Court in the near future, he said.

A ruling from the court could help companies seeking guidance.

The DOJ issued an advanced notice of proposed rulemaking in 2008, seeking public comment on possible standards for website accessibility as well as potential coverage limitations and compliance issues.

But the agency still has not issued proposed regulations, let alone finalized rules, leaving online businesses “with no clearly defined, accepted, gold standard of accessibility guidelines,” Orlick said.

While companies wait for further guidance — whether from the DOJ or the federal courts — they should consider reviewing the accessibility of their sites, Lanvers suggested.

“Every company should be thinking of how to provide accessible services to consumers and should be implementing accessible solutions,” she said.

For example, Lanvers noted that many online educational institutions fail to offer courses with captioning.

Orlick said he advises his clients to establish “enterprise-wide ADA compliance, not only in the physical brick-and-mortar context but with accessible websites and … telecommunications relay service,” where the deaf and hard of hearing can communicate with third parties through intermediaries.

Other technological solutions might include screen-reader software that can navigate a blind or sight-impaired person through a website, or voice recognition software that allows those who cannot use their hands to speak commands to the computer and keyboard.

Brian Frasier contributed to this story.