Netflix captions lawsuit settlement – how the perception of why you’ve improved your accessibility is vital for ROI

The captions lawsuit between NAD and Netflix that I reported in June has now been settled.

Netflix Inc. and the National Association of the Deaf (NAD) have submitted a joint Consent Decree to a federal court in Springfield, Mass., ensuring closed captions in 100% of Netflix streaming content within two years (more information on this historic agreement is available on the NAD site).

So what does this mean for Netflix, NAD, the hard-of-hearing that people organisations like NAD represent, and the web industry in general?

A ‘reasonable and workable’ model for how Netflix will reach 100% captioned programmes

“We’re so pleased that Netflix worked jointly with plaintiffs to devise a reasonable and workable way to achieve 100% captioning. The Decree is a model for the streaming entertainment industry,” said Arlene Mayerson, Disability Rights Education & Defense Fund’s Directing Attorney. “DREDF hopes that this is the beginning of opening the internet for deaf and hard of hearing individuals in streamed entertainment, education, government benefits, and more.”

This gives one cause to wonder what this “reasonable and workable way to achieve 100% captioning” is.

Frame of video showing caption "People can't always be perfect cos that's not real, is it?"Let’s hope that Slashdot’s story about Netflix ‘stealing’ DivX subtitles from Finnish Pirates is not it.

More likely, as highlighted by Media Access Australia, is that part of Netflix’s solution is crowd-sourced captioning via a community built on Amara – an open-source, non-profit project that promotes the captioning of online video content.

This is an interesting initiative. It’s certainly a cost-effective one. But I’m not sure whether a community of 30 volunteers (the current capacity) will be able to caption the remaining minimum 18% of Netflix’s archive of 50,000 movies within 2 years…

It will be interesting to see if Netflix has other models up its sleeve to live up to its commitments, especially as the agreement requires them to ensure by September 30th 2016 that all programmes on Netflix (whether they had pre-existing captions or not) have captions available no later than 7 days after launch.

Impact on other video-on-demand suppliers

There’s a lot of sense to this combination of encouraging programme-makers to make online captions for the programmes they license to Netflix, and Netflix adding captions to those programmes that don’t in a cost-effective way.

If it works, it should hopefully set that ‘good model’ for the rest of the video-on-demand industry, even if it’s not the solution for faster-paced news programming.

And let’s hope it does work, because the existence of this ruling could be seen to undercut any reasoning video-on-demand companies (like LoveFilm in the UK) have used in the past that providing captions/subtitles is “prohibitively costly”.

It will be interesting to see if this settlement impacts the panel discussion between various UK and international media companies on business cases for accessible video at the CSI magazine User Experience Conference 2012 Accessibility Summit that I’m speaking at in December.

So, if the costs of providing 100% captioning have been considered “reasonable and workable”, then what benefits will companies providing this level of captions enjoy?

Who could benefit from this captioning?

It’s disappointing that NAD, in their press release, don’t talk about all the audiences who benefit from captioning – it’s not just the 48 million deaf and hard of hearing people that they highlight…

In recent research I’ve been doing into the audiences for captions/subtitles and organisations that create captions (such as STAGETEXT – an organisation that provides captioning and live speech-to-text services in theatres and other arts and cultural venues in the UK), I’ve found even more audiences that benefit from captions including:

  • many people for whom English is a second language;
  • young children learning to read;
  • people on the autistic spectrum who find it difficult to differentiate between different people speaking in a scene;
  • people in shared-offices without headphones;
  • and a growing majority of older people who may not consider themselves hard of hearing, but may have difficulty hearing dialogue over background noise and music.

Including captions and transcripts also results in an increased ability for video to be found by search engines – CNET reported a 30% increase in traffic from Google after providing transcripts for its videos – a compelling business case that should be more known than it is.

So what benefits will Netflix get?

Well, the lawsuit has gone away… And Netflix have “only” had to agree to pay $755,000 in legal fees and $40,000 to NAD to help them monitor the agreement between the two parties. This is a much lower figure than the $6m Target paid in damages to the class action claimants represented by the National Federation of the Blind (NFB) in 2008.

Netflix is also likely to benefit from its captions attracting and retaining some of the audiences listed above to use their service, especially if they promote it to those audiences (something which is, unfortunately, rarely done).

However, it is questionable how many of the “48 million deaf and hard of hearing people [who] will be able to fully access Netflix’s Watch Instantly services” will actually do so, if this comment from ‘Emmett’ to news of the settlement is at all representative of the views of hard-of-hearing Americans:

“Since 2010 I do not use NetFlix. I am HOH. I will not give them another chance. They are only doing this because federal judges made it known NetFlix were in the wrong.”

This comment reveals the potential loss of ‘brand value’ that neglecting to listen to disabled communities causes, as I predicted in my blog on the damage caused to BMI-Baby’s brand due to their lawsuit with RNIB in the UK earlier in the year.

In this particular case, the comment was added to an article revealing that Netflix are doing better than competitors like Blockbuster’s On Demand movie service. It seems the damage may have already been done. And the manner of Netflix’s decision to turn around and provide better accessibility has not impressed all hard-of-hearing people.

This is the danger of leaving accessibility to a “version 2”, or until disabled people complain: that whether or not you then fix the accessibility problem, you may have already lost the disabled community’s trust… and their spending power.

How to recover the trust of disabled audiences

There are three possible approaches you could take to gain and keep the trust of your disabled audiences:

  1. Achieve perfect accessibility right from the start, which is pretty-much impossible.
  2. Be up-front about what you’ve been able to make accessible and what you haven’t, right from the start, and say why. Treat disabled people like adults, and be transparent with accessibility information (for example: one of the Netflix settlement criteria was that they make it easier for people to find out which programmes have captions, and which haven’t). Saying why you haven’t been able to do everything, what you are planning to do about it, and how people can contact you keeps useful dialogue going with your disabled audiences so they don’t leave while you improve matters. This is why BS 8878 advises you to put this information in your site’s accessibility statement.
  3. Hide what you haven’t been able to do, and hope disabled people don’t notice. And then try and get your annoyed audiences back on-side through a massive PR battle to replace, in the minds of the individual disabled people, the bad PR you’ve just subjected them to, with good PR messages about how you’re sorry that you got it wrong, and that you have improved things now.

Think of this like new Apple vs old Apple. Old Apple would not admit their failings, hoping Steve Jobs’ reality distortion field would make you question your own judgement that anything was wrong. Whereas new Apple, post-Jobs, responds to the failings of Apple Maps with falling-on-sword apologies and promises to do better.

Part of this change at Apple is style, but it’s also a reflection that it’s questionable whether you can get away with the old way of doing things these days. Social networks allow people of any particular ‘tribe’ to distribute messages virally – and deaf and hard-of-hearing people can be seen here as a tribe like any other – and negative messages usually buzz around a network quicker than positive ones.

So, for Netflix to really win, they need to think of the $40k they are giving to NAD to monitor their progress as the downpayment on the start of a PR campaign in which they ask NAD for some advice and ambassadorship to rehabilitate their reputation with deaf and hard-of-hearing audiences.

That way, it’s even possible that their return on investment on providing captions, including the damages in the legal case, could still be positive.

And that should be what all deaf and hard-of-hearing people want, for their needs to be better supported by the video-on-demand industry.

The moral of the story…

As it is likely to be impossible to create products that delight all your potential disabled audiences from day one, you need to take as much, maybe even more, care over your communications to disabled people as you do for everyone else.

Need any help?

We at Hassell Inclusion are very well-versed in enabling organisations to gain and retain the trust of their disabled audiences, mostly from Jonathan Hassell’s experience of doing this with the wide and vocal disabled audiences of the BBC.

If you need any help in understanding and connecting with your disabled audiences, please get in touch and we’ll be delighted to help you.

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Graham Armfield says

Excellent article Jonathan.

Jonathan Hassell says

Thanks, Graham.

Peter Abrahams says

Jonathan good article. I wrote a blog recently about captioning where I identified another group who can use captions, basically people watching Shakespeare or similar archaic language or programs with strong regional accents.
Also I assume that Netflix will now be going back to the orignators of the content and insisting that all new content is captioned at source. Given that much content will have a written script captioning at source is much easier.

Jonathan Hassell says

Thanks for this, Peter.

Yes, as you say in your blog subtitles can be very useful for helping people understand plays in complex or archaic language (STAGETEXT report that people without hearing impairments can find their theatre captioning useful for this exact reason). And helping those for whom English is a second language is another good addition to the business case…

And, yes, I’m hoping that Netflix’s settlement does encourage them to ask content originators to caption at source. The model of video distributors requiring content creators to include subtitles with any video they license and distribute has the most potential for making inclusion of captions a business-as-usual part of video content production.

Sveta says

I have a website about audio accessibility, and there’s a page that explains the benefits of captioning as universal access:

Also, I am not pleased with the fact that Amara is collaborating with Netflix to volunteer captioning for their videos. Netflix has plenty of money from subscribers to be able to invest into good quality captions. If their DVDs can be captioned, so why cannot their online videos, too? It doesn’t make sense to me. Also, I feel that Amara needs to focus on organizations and individuals that have limited resources to caption their videos.

Jonathan Hassell says

Thanks for this Sveta. Your page has lots of useful information.

It is interesting that Amara is collaborating with Netflix for them to investigate whether volunteers could be part of their captions solution. I’d agree that Netflix have more financial resources than some other organisations that Amara’s volunteers could help. But if people want to volunteer to help Netflix in this way I can’t see anything wrong with that.

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