In April, I posted about the Eleventh Circuit’s landmark Winn-Dixie decision—holding that websites in and of themselves are not subject to the Americans with Disabilities Act ( “ADA”). This decision deepened the Circuit split on whether stand-alone websites—not connected to physical stores—are subject to the ADA. Most district courts in the Second Circuit have reached the opposite conclusion from the Eleventh Circuit—holding that the ADA does apply to stand-alone websites. However, a recent decision from the Eastern District of New York suggests a possible sea change.
In Winegard v. Newsday, LLC, a deaf plaintiff alleged that Newsday violated the ADA by failing to include closed captioning on the videos posted on its website. Newsday raised two main defenses: (1) plaintiff lacked standing because the videos at issue were also available on YouTube with closed captioning; and (2) Newsday’s stand-alone website—with no public-facing, physical retail operation—is not subject to the ADA. While the court rejected Newsday’s standing defense, it agreed with Newsday that stand-alone websites—unconnected to a brick-and-mortar business—are not “places of public accommodation” that are subject to the ADA.
Some key take-away points:
- This decision is not binding on courts in the Second Circuit, so it remains to be seen whether New York federal courts will become a less attractive venue for website accessibility lawsuits. Regardless, plaintiffs can always choose to file in state court or in a different circuit, so it is unlikely to limit the overall number of website accessibility lawsuits filed.
- Accessibility lawsuits have largely focused on accessibility barriers for blind or visually-impaired individuals. However, website accessibility barriers also affect people with varying degrees of auditory, cognitive, physical and speech disabilities.
- In Winegard, the court did not buy the argument that plaintiff wasn’t injured because an accessible version of the video was available elsewhere (e.g., on YouTube). Notably, however, the court did not address whether embedding a YouTube video with the captioning function enabled (rather than posting the video on the site itself) would constitute an ADA violation.
"The issue decided here is of course a matter of significant importance for the deaf and hard-of-hearing community, and also for almost any business that would develop or maintain a website. In the end, this is an issue for Congress to resolve, and Congress did so in 1990 when it restricted the ADA's application to the operation of physical premises." 2021 WL 3617522, at *9.