Closed Captioning and Subtitles Requirements in Media
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Closed Captioning and Subtitles Requirements in Media


Closed Captioning and Subtitles Requirements in Media

On September 28, 2016, a district court judge in California dismissed a complaint brought by members of the Alexander Graham Bell Association for the Deaf and Hard of Hearing alleging, among other claims, that Hollywood movie studios violated their civil rights.1


In Christine Anthony et al. v. Buena Vista Home Entertainment Inc. et al., the plaintiffs claimed Buena Vista Home Entertainment, Disney, Warner Bros., Universal, Paramount, and Sony, violated California’s Unruh Act by failing to provide captions and subtitles on their DVDs for songs in movies and television shows produced by the studios.2 The Unruh Act “guarantees equal access for people with disabilities to the accommodations, advantages, facilities, privileges, and services of all business establishments.”3 The court held the plaintiffs failed to “plead and prove intentional discrimination,” which must be “more than the disparate impact of a facially neutral policy on a particular group.”4


The court followed precedent set by the Ninth Circuit in Greater L.A. Agency on Deafness v. Cable Network News, Inc.5 In that case, the court found that CNN’s policy of not providing captions for their online videos did not violate the Unruh Act because the policy applied to all of the website’s visitors, regardless of whether or not they had a hearing disability.6 Thus, the policy did not amount to intentional discrimination.7 Similarly, in this case, the judge concluded the movie captioning was available for all viewers, and did in fact provide captioning for a large portion of the videos.8


Anthony v. Buena Vista follows a number of cases that have questioned whether companies who provide online video content must include captions or risk suit under the Americans with Disabilities Act, or similar state statutes.9


In the notable case of National Federation of the Blind v. Target Corp. (N.D. Cal. 2006), the plaintiffs claimed Target’s website was inaccessible to the blind, and this unequal access denied them “full enjoyment of the goods and services offered at Target stores.”10 This, they alleged, violated state and federal statutes prohibiting discrimination against those with disabilities.11 The court held there must be a “nexus between the challenged service and the place of public accommodation” as defined by the ADA.12 Furthermore, the court found the nexus theory does not only apply when the service prevents physical access to a public accommodation.13 Thus, the court opened up the possibility that websites could be considered places of public accommodation.


In 2010, the Department of Justice began the process of Advanced Notice of Proposed Rulemaking to address website accessibility for public accommodations in the private sector.14 The DOJ has made it clear that their view is that all private businesses must make their websites accessible to those with disabilities, regardless of whether the business has an actual, physical storefront.15 However, earlier this year, the DOJ announced it would not issue the regulations until at least 2018.16


In the meantime, companies such as Apple and Netflix have been working with the National Association of the Deaf to provide captions for their video content.17 These proactive measures may be the way to go in light of conflicting court opinions and delayed issuance of guidelines from the DOJ.

Gabrielle Siskind

Gabrielle Siskind is a second year law student at Fordham Law, and a staff member of the Fordham Intellectual Property, Media & Entertainment Law Journal.