April 2, 2014

Are Websites Public Accommodations?

Seller Beware: Consumer Protection Insights for Industry

Most people take for granted the 24/7 availability of information, products, and services online. Businesses can interact with their customers no matter where they -- the business or the customer -- may be. This very capability has led many businesses, both old and new, to eliminate physical stores or locations or offices entirely, moving their entire customer interface online. For individuals with disabilities, such as a person who is blind or with low vision or a person who is deaf or hard of hearing, this shift may not necessarily provide the same benefits if the websites fail to provide adequate accessibility features for visual information or for audio content.

The Department of Justice's (DOJ) 2010 revision to the regulations of Title III of the Americans with Disabilities Act (ADA) took "the position that title III covers access to Web sites of public accommodations." If a business already has to comply with Title III and its regulations, its website now have to comply as well. For example, if a bank's website allows users to check their account balance 24/7, but the website lacks full accessibility for individuals who are blind or with low vision or individuals who are deaf or hard of hearing, the bank must provide an "alternative accessible method" 24/7, such as accessible phone number, software that can read the website text or captioning for any audio information. DOJ has not yet determined whether businesses that are not already public accommodations (i.e., web-only businesses) must also comply with Title III, though DOJ indicated at the time the regulations were revised that it expects to do so.

California's Disabled Persons Act (DPA) also addresses disability rights and accessibility issues and provides under § 54(c) that violations of the ADA are also violations of the DPA. Like the ADA, the DPA mandates accessibility of public accommodations. On February 5, 2014, the Ninth Circuit certified to the California Supreme Court the question of whether "places of public accommodation" as referenced in the DPA "include websites, which are non-physical places."

The question certified arose out of Greater Los Angeles Agency on Deafness, Inc. v. CNN, Inc. The Greater Los Angeles Agency on Deafness, Inc.'s (GLAD's) DPA claim alleged that Cable News Network's (CNN's) decision not to provide closed captioning on its website videos failed to "ensure that the benefits and advantages offered by are fully and equally enjoyable to persons who are deaf or have hearing loss in California." CNN sought to dismiss that action under California's Anti-SLAPP statute, which allows early dismissal of actions if they are in the furtherance of free speech and if the plaintiff has not shown a probability of success on the merits. CNN argued that its decision not to provide closed captioning was in furtherance of its right to free speech. A magistrate judge disagreed, ruling that CNN failed to show that GLAD's challenge came from acts in furtherance of its free speech right.

CNN appealed and the Ninth Circuit reversed, holding that because the decision of whether to provide closed captioning would change the way the network chose to present the news, it implicated its free speech rights. As to whether GLAD was likely to succeed on the merits of the claim, however, the Ninth Circuit certified the question to the California Supreme Court in order to determine whether the DPA applies to websites.

The question remains pending with the California Supreme Court. Even if the California Supreme Court finds that the DPA does not define "places of public accommodation" to include websites, businesses without a physical presence should be mindful that as online commerce continues to develop, the state of the law could change rapidly. Already the DOJ has hinted that it may interpret the ADA to cover websites as public accommodations and other states may interpret their laws differently than California. Providing accessibility options on websites before they are legally mandated has the added benefit of being inclusive and showing responsiveness to the needs of customers.


For more information about website accessibility, visit the Web Accessibility Initiative.

© Arnold & Porter Kaye Scholer LLP 2014 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

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