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According to the United States District Court of Massachusetts it likely is.  On June 19th, the district court issued a Memorandum and Order Regarding Motion for Judgment on the Pleadings in the matter of the National Association of the Deaf, et al. (“NAD”), versus Netflix Inc.   In this case the plaintiffs brought action under Title III of the Americans with Disabilities Act (“ADA”) against Netflix for Netflix’s “failure to provide equal access to its video streaming web site, “Watch Instantly,” for deaf and hearing impaired individuals.”

Netflix originally filed a motion to dismiss on September 12, 2011. The court denied Netflix’s motion on November 10, 2011, but granted a stay pending the completion of rule-making proceedings by the Federal Communication Commission (“FCC”) on the CVAA – a related piece of legislation.   On June 19th, the court issued a final judgment denying the motion to dismiss.

Of particular interest in the court’s judgment is the court’s response to Netflix’s first argument for dismissal that “(1) Plaintiffs have failed to allege the existence of a “place of public accommodation,” as required for a claim under the ADA”.  To state a claim under the ADA a plaintiff must show that the alleged discrimination involves the services of a “place of public accommodation.” The NAD in this case argued that Netflix’s Watch Instantly web site was a place of public accommodation.  Specifically, the web site fell into four of the twelve categories for public accommodation outlined under the ADA a “place of exhibition and entertainment,” “place of recreation,” “sales or rental establishment,” and a “service establishment.”

According to the court, NAD convincingly argued that the Watch Instantly web qualified in one or more of those categories.  As noted in the ruling, 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.

Based on this – and a few other points not covered in this post – the court concluded that “the Watch Instantly web site is a place of public accommodation and Defendant may not discriminate in the provision of the services of that public accommodation — streaming video — even if those services are accessed exclusively in the home.”

 So according to the United States District Court of Massachusetts, yes, your web site can be a public accommodation under the ADA.

This blog post is for informational purposes only and does not constitute legal advice.