NAD vs Netflix captions lawsuit: is LoveFilm in the UK even more exposed?

Last week, a U.S. federal judge allowed a lawsuit that would require Netflix to include closed captioning on all its Watch Instantly content to move forward, denying Netflix’s request for the dismissal of the case.

This comes after a Californian court refused to dismiss a lawsuit by GLAD against CNN for its refusal to add closed captioning to its news clips back in February.

Websites are covered by the ADA

The Netflix captions suit ruling is another clear support for the legal case behind web accessibility in the USA, as it gives a clear ruling on the application of the ADA to the web.

While Netflix had argued that the ADA only applies to physical places and shouldn’t apply to a web-only business, the U.S. District Court of Massachusetts judge stated in his decision that:

“the legislative history of the ADA makes clear that Congress intended the ADA to adapt to changes in technology.”

According to the judge:

“In a society in which business is increasingly conducted online,” the ADA would only be compromised by ”excluding businesses that sell services through the Internet.”

As Arlene Mayerson, attorney for the Disability Rights Education and Defense Fund, says:

“By recognizing that websites are covered by the ADA, the court has ensured that the ADA stays relevant as much of our society moves from Main Street to the Internet.”

Has the lawsuit already had most of its intended effect?

What is particularly interesting in this case is that, possibly as a result of this lawsuit, Netflix is already doing more than almost any other video-on-demand supplier to enrich its content with captions / subtitles.

In the last year it has:

Could a similar lawsuit happen in the UK?

In comparison, Netflix’s main rival in the UK – LoveFilm – doesn’t yet include closed captions (or subtitles, as they are usually called in the UK) on its LoveFilm Instant service on any platform, despite this having been something highlighted by Hearing Impaired people through the RNID over a year ago and continually kept in the public eye by Pesky People’s #subtitlesnow campaign.

LoveFilm’s reasoning for its lack of captions, stated in May 2011 as a response to Craig Butchers initial complaint, was that it was:

“… prohibitively costly, and likely to be breach of license agreements, for us to unilaterally develop and implement open or closed captioning for our on demand titles but we will continue to raise this with our licensors.

It is worth noting that nearly our entire VOD catalogue is duplicated by our DVD catalogue and most DVDs have some form of English language subtitling and, in some cases, full captioning.”

With Netflix’s progress in providing captions, proving that it can be done in terms of license terms and costs, this excuse is beginning to look less and less reasonable.

LoveFilm’s argument – that people who need captions can get that facility through their DVD catalogue – has echoes of the argument that some mobile app owners have used to justify the lack of accessibility of their apps: that the service provided by their app is also available in an accessible form via their website.

However, as Martin Sloan blogged on that issue:

“service providers do have a duty, under the reasonable adjustments obligation, to continue to review the means through which they provide services and consider whether any adjustments can be made which will improve the accessibility to users with disablities (this obligation does not apply to potential age discrimination). This is an evolving duty, and so requires service providers to take advantage of new technologies and techniques – for example, new hardware or operating system features, and new W3C standards.”

So, while precedents set under the American ADA do not apply in the UK, the similarities between the judge’s ruling that the ADA’s intention is to adapt to changes in technology, and the Equality Act’s clear evolving duty on service providers to take advantage of new technologies, should be enough to give LoveFilm some pause for thought.

It’s only UK disability lobbyists’ culture of ‘work with…’ rather than ‘litigate against…’ that is stopping a similar captioning lawsuit happening here in the UK.

And, as the RNIB BMI-baby lawsuit seems to indicate, a culture of litigation seems to be emerging in the UK, based on the successful results of disabled groups mobilising in the US.

Could provision of captions/subtitles be a USP for Netflix over LoveFilm?

For now, despite the ongoing lawsuit against it, Netflix is still the best bet for subtitled film and TV from paid-for video-on-demand services in the UK, as it is in the US.

For people who are hard of hearing, this gives Netflix a unique selling point over LoveFilm.

And, bearing in mind that the same technology used for closed-captions for the original language of a film or TV programme can be used to caption it into other languages, closed-captioning technology may be a strategically essential element to enable organisations like Netflix and LoveFilm to extend their services into countries outside the English-speaking world.

In the battle for distribution of online video globally, as understood by YouTube, closed-captioning is a real enabler.

How should LoveFilm and other online streaming services react to this case?

Like all organisations that own websites, video-on-demand services would do well to further consider how to balance the needs of their disabled users with the needs of their other users, and how to balance the priority of creating accessibility USPs against USPs in available content, available platforms etc.

Based on the legal and business case for closed-captions, my recommendation is that all video-on-demand services place a higher priority on investigating how to put in place the right workflows to ensure as much of their content that has captions / subtitles on DVDs has the same captions / subtitles online.

As Hassell Inclusion were instrumental in helping BBC iPlayer to achieve close to 100% subtitles for all its TV and film content online, we’d be happy to help any online video providers investigate how the inclusion of captions could be added to their business-as-usual video production and distribution processes to gain competitive advantage.

Please contact us if we can be of any help.

9th October 2012 update – case settled

The captions lawsuit between NAD and Netflix was settled on 9th October, with an agreement for Netflix to achieve 100% captioned programmes within 2 years and to pay costs of $755,000 in legal fees.

For more, see my analysis blog on what does this mean for Netflix, NAD, the hard-of-hearing people that organisations like NAD represent, and the web industry in general?

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10 Comments to “ NAD vs Netflix captions lawsuit: is LoveFilm in the UK even more exposed? ”

  1. Amanda says: Reply

    I’m in the United States and cancelled my account with Netflix years ago, shortly before the class action lawsuit was put together. I am deaf. My husband is hearing. We have an interesting perspective and I blogged about it at http://www.thewiseguys.com/2012/10/21/netflix-allegedly-making-progress-on-closed-captions-for-streaming-content/ this morning.

    • hassellinclusion says: Reply

      Hi Amanda,

      Many thanks for your comment. I’ve read your blog, and I think the question you ask in it – will the progress promised by Netflix in their recent settlement encourage hard-of-hearing people to resubscribe to Netflix? – is a really good one. Watch out for a follow-up blog from me in the next few days on that very subject.

      Jonathan

  2. Karen Mardahl says: Reply

    I wonder if we have another example of things being different depending on which country you are in. (Where’s WIPO?)
    I live in Denmark and use Lovefilm. The streaming service is in Beta (has been for some time), so I checked the offerings there. All the films I have seen so far offer subtitles in various languages plus the choice of no subtitles. I haven’t found a Danish film on this service, so I do not know whether it would have subtitles. If they presume everyone speaks Danish and therefore don’t need subtitles, it wouldn’t. However, they presume no one speaks any other language, so all the other films have subtitles. I have seen movies in English, Swedish, and French so far, and I could get Danish subtitles with all of them. I noticed a children’s film in a foreign language is offered with dubbed Danish (don’t know if they’ll have subtitles, too). Another children’s film has a note saying it’s in Swedish with synchronized Danish. Not sure what that means, but I recall Swedish television programs shown on Danish TV where the original Swedish was faint in the background while a Danish voice (one) did all the dialogue in Danish at normal sound levels. I wonder if that would quite awful for someone with partial hearing – like those awful audio CAPTCHAs.

    My point with all this is, if one country has subtitles, then they are available within the corporation that is Lovefilm in other countries. Are we talking copyright, DRM, or what? I wasn’t joking when I mentioned WIPO.

    • hassellinclusion says: Reply

      Copyright could certainly come into it. One of the differences between making subtitles available on a DVD and for online streaming is that it can be easier to access the whole subtitle file online – so, for example, you could potentially print it out giving you a copy of the dialogue-part of the script of a film or TV programme. As publishers publish scripts for financial gain on occasions (I’ve got a book of Seinfeld scripts which is awesome), it’s possible that the streaming rights for some TV and films do not automatically include the rights to stream the subtitles in some countries.

      One thing’s for sure, the IP rights issues around streaming TV and video are complex, and the whole industry is coming from a position where rights to broadcast and publish (via DVD, Blu-Ray etc.) TV and film have historically always been segmented by country. So it’s likely that these country by country issues are going to crop up time and again.

  3. Alison says: Reply

    As a deaf customer of Lovefilm, I’ve raised this issue since at least 2007 (and I’ve rented dvds since 2003). Other deaf people have done the same. Lovefilm’s original excuse, they could not provide subtitles due to “copyright issues”. (I have e mails about this). The viewing of subtitles via dvds is actually a lesser standard of service.

    Lovefilm stated last week in a reply to me (on Twitter) that they are now working on subtitling online content. They say they have no timescale for this. The Equality Act 2010 makes specific provisions under Information Society Services.

    btw, we’re not “hearing impaired” but deaf. Thanks.

    • hassellinclusion says: Reply

      Thanks for the comment, Alison.

      Great to hear Lovefilm are working on subtitling online content, and responding to your concerns.

      My apologies if you didn’t like my use of the term ‘hearing impaired’, but I use it to include people who are deaf and people who have conditions like tinnitus, as both groups appreciate subtitles.

  4. Michael Janger says: Reply

    A point of clarification about Netflix’s 80% captioning announcement: it only covers hours streamed, not the number of movies available with captions. It’s not what the deaf market wants to hear. Attached is an article I wrote on this issue: http://drumbeatconsulting.com/blog/2012/03/03/netflix-is-tone-deaf-as-it-announces-80-captioning-achievement/

    While I understand and appreciate Netflix’s attempts to caption its instant streaming content, their communications on this issue just has not been satisfactory.

    • hassellinclusion says: Reply

      Thanks for this, Michael. Yes, I’d noticed the difference between hours watched and number of programmes and movies available.

      I think the strategy of starting to caption the most-watched programmes first, and then moving onto less-watched programmes does makes sense. This strategy is, for example, what broadcasters like the BBC do if they are only going to add audio description (descriptive video) or signing to 15%-20% of their programmes (because the costs of adding these features to the whole programme catalogue are prohibitive).

      However, I agree with you that Netflix using ‘hours streamed’ rather than ‘programmes captioned’ as the metric they publicise is not what the audience want – we decided to use ‘programmes captioned’ when we were communicating the captions stats for BBC iPlayer for that reason.

      • Michael Janger says: Reply

        Jonathan, thanks for your reply. I agree 100% that, from a practical perspective, it makes sense to caption those titles for which there is substantial viewing demand, since this strategy reaches the largest possible audience in the least amount of time. The error Netflix has made is not communicating well with the deaf and hard-of-hearing community in that respect – and now there is a high level of distrust among deaf movie watchers toward Netflix. While Hulu and other instant-watch sites in the US still need to caption more content, Hulu has at least been more forthcoming in communicating about their own captioning issues.

        I certainly do hope the same for LoveFilm in terms of accessibility. It just needs to be aware that it’s one thing to focus on the most effective method of implementation (captioning the most-watched movies) and another thing to communicate its intent to the target audience. Saying “we can’t caption everything because it’s too expensive” doesn’t exactly ring as well to customers as saying “we are committed to finding solutions to work toward 100% accessibility.” Saying the latter at least shows the company is working hard, even if it can’t promise it will hit 100%.

        • hassellinclusion says: Reply

          Many thanks, Michael. You’ve just given me another great example to illustrate one of the things I always advise my clients: make sure you communicate your accessibility decisions in a transparent way that enables the people who are impacted by them to both understand your decisions, and how to engage with you in discussion around them.

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