** Lawsuits Against Website Owners under the ADA begin shifting to Accessible Video Content **

By: Brent E. Johnson 

We have blogged in recent years about the plethora of lawsuits surrounding accessibility to websites for the visually impaired – specifically suits bought under Title III’s requirement to provide “auxiliary aids and services” (42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303), which, for the visually impaired, inevitably means coding of the underlying website to sync with screen reading technology.  The vast majority of ADA web accessibility lawsuits relate to the visually impaired and the failure to afford screen reading functionality – 90% of the approximately 3,500 ADA web access lawsuits filed in 2020. 

There is a small minority of cases that involve claims relating to the hearing impaired — specifically, claims that video and audio content fail the hearing impaired by not being properly captioned.  Even porn sites (known for their meaningful dialogue) have not been immune.  See Suris v. Mindgeek Los Angeles dba Pornhub.com, No. 1:20-cv-00284, (E.D.N.Y).

While ADA video captioning cases are in the minority, the number has risen through 2020 and is expected to rise further in 2021.  A number of factors are contributing to this rise: (i) the ADA plaintiffs’ lawyer market has become crowded causing the push for new targets; (ii) video content has become more important to web engagement – spurred no doubt by quarantine and stay-at-home orders; and (iii) large public interest groups have settled long running lawsuits against public institutions providing captioning, which has set a precedent for the enterprising Plaintiffs’ bar.  See Nat’l Ass’n of Deaf v. Massachusetts Inst. of Tech., No. 3:15-CV-30024-KAR, 2020 WL 1495903 (D. Mass. Mar. 27, 2020); Nat’l Ass’n of Deaf v. Harvard Univ., No. 3:15-CV-30023-KAR, 2019 WL 6699449, at *1 (D. Mass. Dec. 9, 2019). 

Unfortunately for many website owners – even those diligently working on their coding and screen reading capabilities – video has been (no pun intended) a blind spot.

So what to do?

• Review the audio and visual content provisions in Section 1.2 of the Web Content Accessibility Guidelines (WCAG) 2.1 for applicability to companies’ websites.  Notably, the basic Level A & AA rules requiring captioning unless the video or audio is already an alternative for text and is clearly labelled as such.
• Also bear in mind if the video does not have audio – the visually impaired may require an audio alternative to what is presented on screen.
• Companies looking to avoid these lawsuits should work with a vendor that supplies reliable video captioning services – WCAG guidance requires that companies include  dialogue, descriptions of sound, settings and setting changes, expressions etc.  On that basis courts have been leery of using automated tools – like Youtube auto-captioning – which are claimed to have a high error rate.
• Is sign language interpretation required?  This is certainly a WCAG 2.1 AAA requirement – but most courts do not require that high level of compliance.  The WCAG, itself, notes that automatic sign language features are not currently technically feasible and posits that requirement for the future.
• Companies should keep in mind extended audio descriptions (i.e., where pauses in foreground audio are insufficient to allow audio descriptions to convey the sense of the video).  This is also a Level AAA only requirement, but is considered a best practice.