Advocates for Blind, Deaf Say Netflix, Target Are Legally Obligated to Make Sites Easier to Navigate
article by JOE PALAZZOLO; The Wall Street Journal, March 22, 2013
Commerce has moved online. Now, the disability lawsuits are following.
Advocates for disabled Americans have declared that companies have a legal obligation to make their websites as accessible as their stores, and they've filed suits across the country to force them to install the digital version of wheelchair ramps and self-opening doors.
Their theory that the 1990 Americans with Disabilities Act applies to the modern Internet has been dismissed by several courts. Still, the National Federation of the Blind and the National Association of the Deaf have won legal victories against companies such as Target Corp. and Netflix Inc. Both companies settled the cases after federal judges rejected arguments that their websites were beyond the scope of the ADA.
[photo: Anne Taylor uses a Google Nexus 7 tablet at the National Federation of the Blind in Baltimore.Stephen Voss for The Wall Street Journal]
"It's what I call 'eat your spinach' litigation," said Daniel F. Goldstein, a Baltimore lawyer who represents the NFB. "The market share you gain is more than the costs of making your site accessible."
Several other companies have worked with the NFB to make their websites more accessible to people with disabilities, including eBay Inc., Monster.com, Travelocity and Ticketmaster.
Eric Goldman, a professor at Santa Clara University School of Law, said most courts have ruled that online spaces aren't covered by the ADA. "Congress never contemplated the Internet at the time, and if they had, they would have included it," he said.
But that could soon change. The U.S. Department of Justice is expected to issue new regulations on website accessibility later this year that could take a broad view of the ADA's jurisdiction over websites. A Justice Department spokeswoman declined to comment.
That could mean websites will be required to include spoken descriptions of photos and text boxes for the blind, as well as captions and transcriptions of multimedia features for the deaf, said Jared Smith, associate director of WebAIM, a nonprofit group that trains and evaluates companies on Web accessibility.
Mr. Smith also advises companies to ensure that people with motor disabilities can navigate websites without the use of a mouse, and to use plain language and a strong design to aid people with cognitive or intellectual disabilities.
Lawyers who represent companies in ADA cases say an expansive reading of the law could expose their clients to a rash of frivolous lawsuits. They also argue that companies face a considerable burden in ensuring their websites are compatible with the latest technologies for aiding the disabled, such as software that reads aloud text on the screen.
"It's in everybody's interest to make sure that disabled people have access to websites, but whether the law is the avenue to achieve that change is another question," said Matthew Kreeger, who represented Target. "It's kind of a blunt instrument."
Not for Anne Taylor, who has to guess where to type in her name, credit card information and address when she shops online on websites that aren't accessible to the blind. She gets some help from the computer voice that alerts her when she runs her mouse cursor across a "text box."
Ms. Taylor, the director of access technologies at the NFB, which represents an estimated 25 million adults with vision loss, said she can usually figure out which bit of her personal information goes into which box, given her area of expertise.
"But this isn't the experience we want blind people to have," she said. "This is not an experience a company would want a sighted person to have."
Research has exposed vast gaps in accessibility. Jonathan Lazar, a professor at Towson University, studied 16 employment websites in 2012 and found that applicants who were blind required assistance more than two-thirds of the time.
The costs of making a website accessible vary based on the complexity of a website, and it is much cheaper to build accessibility features into a new site than to retrofit an old one, experts said.
Tim Springer, chief executive of SSB BART Group, which advises companies on accessibility, said companies can expect to pay about 10% of their total website costs on retrofitting. But if they phase in accessibility as they naturally upgrade their website, they usually spend much less—between 1% and 3%, he said.
The ADA requires equal access to "public accommodations," which include restaurants, retail stores, movie theaters, recreational facilities and other physical spaces that are spelled out by the law. It makes no mention of websites as a public accommodation.
Some courts have held that ADA covers only physical spaces. The Target case, which settled in 2008, marked the first time a federal district judge ruled that the law applies to websites when they act as a gateway to a brick-and-mortar store. As part of the settlement, Target established a $6 million fund for settlement claims and agreed to modify its website to meet accessibility guidelines. Target declined to comment.
Last June, a federal district judge in Massachusetts became the first to rule that the ADA's accessibility requirements apply to website-only businesses. The case involved a suit brought by the National Association of the Deaf against Netflix. It demanded the company provide closed captioning for its Internet video subscribers.
"The fact that the ADA does not include Web-based services as a specific example of a public accommodation is irrelevant," wrote Judge Michael Ponsor. The legislative history of the ADA, he wrote, made it clear that Congress intended the law to adapt to technology.
After the ruling, Netflix agreed to make 100% of its content captioned by 2014. The company declined to comment.
Howard A. Rosenblum, CEO of the National Association of the Deaf, said his group was in discussions with other companies about captioning streaming movies online. "Legal action will be taken where such discussions are not successful," Mr. Rosenblum wrote in an email.
Most cases are resolved without litigation, said Lainey Feingold, a California lawyer who specializes in Web accessibility.
She has reached 45 agreements in the past 18 years with companies ranging from Bank of America Corp.
to Charles Schwab. She credited the financial industry, in particular, for its efforts to improve website accessibility.
Robert Fine, a Miami-based lawyer who represents companies in ADA matters, said clients are increasingly seeking counsel on website accessibility before they are approached by lawyers such as Ms. Feingold, because they want to avoid bad publicity and increase their market share.
"My clients tend not to be saying 'How do I get out of doing this,' " he said.
Write to Joe Palazzolo at joseph.palazzolo@wsj.com
http://online.wsj.com/article/SB10001424127887324373204578374483679498140.html?mod=wsj_share_tweet#project%3DWEBSITE0321%26articleTabs%3Darticle
article by JOE PALAZZOLO; The Wall Street Journal, March 22, 2013
Commerce has moved online. Now, the disability lawsuits are following.
Advocates for disabled Americans have declared that companies have a legal obligation to make their websites as accessible as their stores, and they've filed suits across the country to force them to install the digital version of wheelchair ramps and self-opening doors.
Their theory that the 1990 Americans with Disabilities Act applies to the modern Internet has been dismissed by several courts. Still, the National Federation of the Blind and the National Association of the Deaf have won legal victories against companies such as Target Corp. and Netflix Inc. Both companies settled the cases after federal judges rejected arguments that their websites were beyond the scope of the ADA.
[photo: Anne Taylor uses a Google Nexus 7 tablet at the National Federation of the Blind in Baltimore.Stephen Voss for The Wall Street Journal]
"It's what I call 'eat your spinach' litigation," said Daniel F. Goldstein, a Baltimore lawyer who represents the NFB. "The market share you gain is more than the costs of making your site accessible."
Several other companies have worked with the NFB to make their websites more accessible to people with disabilities, including eBay Inc., Monster.com, Travelocity and Ticketmaster.
Eric Goldman, a professor at Santa Clara University School of Law, said most courts have ruled that online spaces aren't covered by the ADA. "Congress never contemplated the Internet at the time, and if they had, they would have included it," he said.
But that could soon change. The U.S. Department of Justice is expected to issue new regulations on website accessibility later this year that could take a broad view of the ADA's jurisdiction over websites. A Justice Department spokeswoman declined to comment.
That could mean websites will be required to include spoken descriptions of photos and text boxes for the blind, as well as captions and transcriptions of multimedia features for the deaf, said Jared Smith, associate director of WebAIM, a nonprofit group that trains and evaluates companies on Web accessibility.
Mr. Smith also advises companies to ensure that people with motor disabilities can navigate websites without the use of a mouse, and to use plain language and a strong design to aid people with cognitive or intellectual disabilities.
Lawyers who represent companies in ADA cases say an expansive reading of the law could expose their clients to a rash of frivolous lawsuits. They also argue that companies face a considerable burden in ensuring their websites are compatible with the latest technologies for aiding the disabled, such as software that reads aloud text on the screen.
"It's in everybody's interest to make sure that disabled people have access to websites, but whether the law is the avenue to achieve that change is another question," said Matthew Kreeger, who represented Target. "It's kind of a blunt instrument."
Not for Anne Taylor, who has to guess where to type in her name, credit card information and address when she shops online on websites that aren't accessible to the blind. She gets some help from the computer voice that alerts her when she runs her mouse cursor across a "text box."
Ms. Taylor, the director of access technologies at the NFB, which represents an estimated 25 million adults with vision loss, said she can usually figure out which bit of her personal information goes into which box, given her area of expertise.
"But this isn't the experience we want blind people to have," she said. "This is not an experience a company would want a sighted person to have."
Research has exposed vast gaps in accessibility. Jonathan Lazar, a professor at Towson University, studied 16 employment websites in 2012 and found that applicants who were blind required assistance more than two-thirds of the time.
The costs of making a website accessible vary based on the complexity of a website, and it is much cheaper to build accessibility features into a new site than to retrofit an old one, experts said.
Tim Springer, chief executive of SSB BART Group, which advises companies on accessibility, said companies can expect to pay about 10% of their total website costs on retrofitting. But if they phase in accessibility as they naturally upgrade their website, they usually spend much less—between 1% and 3%, he said.
The ADA requires equal access to "public accommodations," which include restaurants, retail stores, movie theaters, recreational facilities and other physical spaces that are spelled out by the law. It makes no mention of websites as a public accommodation.
Some courts have held that ADA covers only physical spaces. The Target case, which settled in 2008, marked the first time a federal district judge ruled that the law applies to websites when they act as a gateway to a brick-and-mortar store. As part of the settlement, Target established a $6 million fund for settlement claims and agreed to modify its website to meet accessibility guidelines. Target declined to comment.
Last June, a federal district judge in Massachusetts became the first to rule that the ADA's accessibility requirements apply to website-only businesses. The case involved a suit brought by the National Association of the Deaf against Netflix. It demanded the company provide closed captioning for its Internet video subscribers.
"The fact that the ADA does not include Web-based services as a specific example of a public accommodation is irrelevant," wrote Judge Michael Ponsor. The legislative history of the ADA, he wrote, made it clear that Congress intended the law to adapt to technology.
After the ruling, Netflix agreed to make 100% of its content captioned by 2014. The company declined to comment.
Howard A. Rosenblum, CEO of the National Association of the Deaf, said his group was in discussions with other companies about captioning streaming movies online. "Legal action will be taken where such discussions are not successful," Mr. Rosenblum wrote in an email.
Most cases are resolved without litigation, said Lainey Feingold, a California lawyer who specializes in Web accessibility.
She has reached 45 agreements in the past 18 years with companies ranging from Bank of America Corp.
to Charles Schwab. She credited the financial industry, in particular, for its efforts to improve website accessibility.
Robert Fine, a Miami-based lawyer who represents companies in ADA matters, said clients are increasingly seeking counsel on website accessibility before they are approached by lawyers such as Ms. Feingold, because they want to avoid bad publicity and increase their market share.
"My clients tend not to be saying 'How do I get out of doing this,' " he said.
Write to Joe Palazzolo at joseph.palazzolo@wsj.com
http://online.wsj.com/article/SB10001424127887324373204578374483679498140.html?mod=wsj_share_tweet#project%3DWEBSITE0321%26articleTabs%3Darticle
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