Given the rapid expansion in the nature and extent of online business, website accessibility—i.e. designing and coding websites so that people with disabilities can use them—is an issue every business that stakes its claim to online real estate should be thinking about.
The plaintiff’s bar has already demonstrated their understanding that this area is ripe for litigation, as we’ve seen the number of website accessibility lawsuits filed in federal courts triple from 2017 (approximately 800) to 2018 (approximately 2250) and continue to grow in 2019 based on our calculations.
Title III of the Americans with Disabilities Act requires private sector businesses that serve as “places of public accommodation” remove barriers to access for people with disabilities. The ADA was passed in 1990, one year before the World Wide Web went public, and it is safe to say the law is still attempting to catch up with the technology. Courts around the country have been tasked with deciding how a law passed before the internet as we know it existed applies to commercial websites.
Unfortunately, the courts haven’t reached a consensus. Courts in the Third, Sixth, Ninth, and Eleventh Circuits have held that “places of public accommodation” are physical locations, but that websites may fall within the definition if they are sufficiently integrated into a physical location’s operations. The quintessential example here being a retail store that offers the same products through its website.
The Department of Justice takes a similar view, and its current position is that Title III applies to all publicly accessible websites used by businesses that would otherwise qualify as a “place of public accommodation.”
By contrast, courts in the First, Second, and Seventh Circuits have found that a website can be a “place of public accommodation” regardless of its connection or the degree of its connection to a brick-and-mortar operation.
A case filed Jan. 16 in the Eastern District of New York looks to have the potential to clarify whether and when solely web-based businesses fall under Title III and the extent to which they must comply.
Is Partial Compliance with Title III Enough?
In Suris v. Mindgeek Holdings Sarl, a deaf plaintiff alleges that he could not enjoy certain videos hosted by popular adult entertainment sites because the videos did not have closed captioning. In a public response to the suit, the vice-president of one of the defendants stated that his site (Pornhub) does in fact contain a category for videos with closed captions.
While we haven’t had the opportunity to independently verify that claim, the response raises the question of whether partial compliance is a defense to an ADA Title III suit in the context of websites that merely aggregate and host content created by others.
That question is especially important because some of the most well-known companies in digital media are simply aggregators and content hosts that do not create their own content (e.g. Facebook and Twitter).
The outcome of that case will be closely monitored for its Title III implications, but the fact that the lawsuit exists at all demonstrates that even a company’s best efforts to comply with Title III may not be enough to avoid litigation.
Companies must be vigilant in teaming with managers, developers, designers, and counsel to evaluate how each aspect of their business fits into the present legal environment, and they must also be prepared to defend themselves and their policies.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Posi Oshinowo is special counsel in Employment & Labor and Commercial Litigation practices at Wiley Rein LLP in Washington, D.C.