Disability History, Part 4: NAD v. Netflix

A lawsuit that shook the internet

Good morning Listen Up readers! Today I am excited to talk about a civil rights lawsuit that helped to make the internet more accessible to people with disabilities. This lawsuit in particular has impacted my life in a big way and it’s cool that I got to witness it happen in my lifetime.

To briefly review, the Americans with Disabilities Act (ADA) was signed in 1990 and established civil rights for disabled people in American. Well, what happened right after that? The explosion of technology and the widespread use of the internet. Because it was drafted before this, the ADA didn’t have guidelines for accessibility in the digital world. This meant that many powerhouses, such as Netflix, were not being made accessible.

Movies have consistently been a huge part of my life. My Mom, in particular, has always loved movies. When my brothers and I were toddlers, my parents would rock us to sleep while watching episodes of Star Trek. As we got older, we would watch movies like Star Wars, What’s Up Doc, Titanic, and The Matrix. Every weekend my family would settle down on the couch, eat cardboard pizza (our nickname for frozen pizza), and watch movies. On Sundays we would watch AFV and Extreme Home Makeover. In those days, there was no streaming entertainment. Even YouTube wasn’t invented yet. If we wanted to watch a new movie, we would either have to buy it in a store (ordering things online was uncommon), see it in theaters, or rent it from a local video store. I still remember wandering through the racks at 3D Video, our local video store. It was a lot like going to a used bookstore, but with VHS tapes lining the shelves instead of books.

When Netflix began, it was the world’s first online DVD rental store. It started in 1997, four months after the invention of the DVD. Since Netflix offered more choices to its consumers, an ever-expanding library, and provided videos in newer technological format, it quickly became popular. We could rent up to two movies at once which would be delivered by mail. Mom always picked the first movie, then the second one would be picked by someone else. There were some spectacular fights over who got to pick the next movie.

In 2007, Netflix introduced a streaming service, which allowed subscribers to watch movies on anything with an internet connection. Waiting for movies to come in the mail was a thing of the past! My family was on board with it from the start. But I noticed there was a problem with Netflix’s streaming service.

Nothing was closed captioned.

As a deaf person, I have to have closed captions. I can’t understand any movie or video otherwise. As a child, I generally spent more time with my nose in a book than staring at a screen, simply because it was hard to understand what was being said. I remember one particular day, I had just come home from school and I laid down on my parent’s bed to flip through channels for something interesting to watch. I stumbled upon a game show where the contestants were dressed in oversized diapers and baby bonnets. Then they had to run through a playroom-themed obstacle course. I watched for almost ten minutes, trying to understand what was being said before I realized they were speaking Spanish.

One of the difficult things about growing up with a disability is isolation. I was never around other deaf people. I never learned how to handle different situations because I’m deaf. I had no deaf people to learn from. No one taught me how to advocate for myself—or when I needed to advocate for my needs. I like to sum it up as “No one taught me how to be deaf.” This isolation means that I grew up not knowing what kind of technology is available to me to use. As an adult, I still don’t know what kind of accessibility options are out there are for me. Every day I’m still learning how to be a deaf person in a hearing world.

As it was, I didn’t know closed captions were a thing until I was about twelve or thirteen years old. When I did discover them, it was by accident! I remember being bored while watching TV (as it was difficult for me to understand the characters talking) and started playing around with the TV remote, pressing random buttons to see what they would do. One of the buttons turned on the closed captions. I was stunned at the white words scrolling across black banners on the screen. I thought it was weird and changed the channel. The words changed too. That’s when it hit me that the words being displayed were what was being said. I could understand everything. I had big fat, tears of joy rolling down my face that day as finished I watching an episode of The Brady Bunch.

After that, I turned the closed captions on everything. Because of the ADA, movies made after 1990 had to have closed captions available. I learned how to turn closed captions on DVDs and how to use the TV captions for VHS. I insisted on the captions being turned on whenever my family watched movies. Later I learned the difference between English subtitles versus subtitles for the deaf and hard-of-hearing (the latter includes sound in addition to speech). Closed captions opened up my world. What’s more, that was the first time in my life that I started advocating for myself and my needs as a deaf person. Which is a vital life skill to have when you have a disability.

So when Netflix started streaming caption-less videos, it affected my life. My family would keep watching movies, but without captions, I was lost on the story. It is boring to watch a movie that you can’t understand. I often preferred to do my own thing rather than watch a caption-less movie. It was a lonely experience. Not that my family excluded me from the activity, rather they often begged me to join them—but I would be so bored and upset if I did, that I found I’d rather be lonely.

“Why aren’t there closed captions?” I would say. “It doesn’t feel fair. They really ought to have closed captions.”

It turns out I was not the only deaf person to say this. Netflix was sued several times by various deaf individuals who recognized Netflix was violating the civil rights of disabled people. But Netflix won each lawsuit.

In addition to not providing closed captions on their streaming service, Netflix decided to raise the price of their mail-only service while lowering the streaming service price. Since DVDs generally have closed captions, this further discriminated against the deaf and hard-of-hearing community. This price gap earned the nickname “the deaf tax.”

Word of this reached the National Association of the Deaf (NAD), a non-profit organization that seeks to promote and protect the civil, human, and linguistic rights of deaf and hard-of-hearing individuals in the United States. The NAD made several public statements and open letters to Netflix over the subject of closed captions. Now, at the time Netflix was working on closed captions, but progress was extraordinarily slow. In 2010, nearly 7,000 movies and TV shows were available to stream. Only 300 of these had closed captions. Clearly, captions were not a priority.

The NAD decided it was time to take things to the next level.

“While Netflix is making progress, which is great it is painfully slow. Further, Netflix does not provide a means for consumers to identify captioned Watch Instantly videos, except by trying to watch them. Looking for a captioned video on Netflix is literally like ‘looking for a needle in a haystack.’

. . . The NAD calls on Netflix, again, to caption all of the videos on its Watch Instantly services now. No exclusion, no discrimination, no special discounts, no exceptions. We do not want to pay more and get less. We want equal access” (1).

Rosaline Crawford (Director of Law and Advocacy for the NAD) in an open letter to Catherine Fisher (Director of Communications for Netflix) on December 17, 2010

In June 2011, the NAD filed a lawsuit against Netflix.

“We have tried for years to persuade Netflix to do the right thing and provide equal access to all content across all platforms. They chose not to serve our community on an equal basis; we must have equal access to the biggest provider of streamed entertainment. As Netflix itself acknowledges, streamed video is the future and we must not be left out” (2).

Bobbie Beth Scoggins, President of the NAD

Netflix had already won several lawsuits over this topic. Their defense was that the ADA was drafted to increase access to physical spaces. Since they were an online service, they had no obligation to make their business accessible. Unfortunately, it was a strong case. As I mentioned before, the ADA had nothing about accessibility for web services or virtual products simply because it was written before these things were invented.

The NAD acknowledge that the ADA was written before the digital age, but argued that it didn’t mean the internet is an exception to the ADA, but rather, lawmakers needed to redefine what a physical space meant in a digital world. People with all sorts of disabilities were being left behind and excluded, which is what the ADA was supposed to prevent.

One year later, on June 19, 2012, the judge ruled in favor of the NAD. Netflix was required to pay nearly $800,000 in legal fees. Their entire library was required to be closed captioned within two years and new content could not be uploaded unless it contained closed captions.

“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 purpose of the ADA. It 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” (3).

Judge Ponsor, on ruling for NAD v. Netflix

The lawsuit made waves through the internet. Netflix was a multi-million-dollar business and the powerhouse of streaming entertainment. They were one of the biggest businesses at the time. When they lost the lawsuit, it sent a message to all the other digital giants who thought they were exempt from the ADA.

In the following years, these giants took steps to became more accessible. YouTube continues to work on improving its closed captions and encourages creators to add closed captions to their videos. Hulu, HBO Max, and Amazon Prime worked to add closed captions to all their content. Even Facebook took strides to be more inclusive. When Disney+ came out, everything they had to offer already had closed captions. Accessibility is being recognized as a fundamental need rather than an optional suggestion.

However, there are still a good number of companies that have yet to make themselves accessible. Today, while the ADA has website guidelines, there are no enforceable legal standards for web accessibility. In 2017, regulations were drafted to include digital accessibility in the ADA. Unfortunately, when it came to approving these regulations in 2020, Donald Trump chose to ignore them. As of today, these regulations have yet to be approved and enforced. Until they are, the civil rights of disabled people will always be questionable for web-based services and products.

As for me, I would have been in my last years of high school before Netflix became accessible to me and I could rejoin my family to watch movies. Now, I watch just as much Netflix as anybody else (which is to say, too much)! And every Friday night, you’ll find me sitting beside my family, watching the latest episode, and reading the closed captions.

Don’t forget to watch the Oscars tonight! Three disabled films have been nominated (a record)! For the first time in history, the Oscars stage will look different as it has been redesigned to be accessible to actors and directors with disabilities. The nominees include Sound of Metal (available only on Amazon Prime), Feeling Through (available for free through YouTube), and Crip Camp (available only on Netflix).

References

  1. Crawford, Rosaline. NAD Calls out Netflix on “Deaf Tax”. 17 Dec. 2010, http://www.nad.org/2010/12/17/nad-calls-out-netflix-on-deaf-tax/.
  2. “NAD v. Netflix.” Disability Rights Education & Defense Fund, 7 Mar. 2014, dredf.org/legal-advocacy/nad-v-netflix/.
  3. Leduc, Jaclyn. “NAD v. Netflix ADA Lawsuit Requires Captioning for Streaming Video.” 3Play Media, 26 Mar. 2021, http://www.3playmedia.com/blog/nad-v-netflix-ada-lawsuit-requires-closed-captioning-on-streaming-video/.