Is the internet a place of public accommodation: a virtual town hall or a virtual shopping mall or a virtual movie theater? Courts still struggle with that.

Physicalist courts say that the ADA requires a physical location. Ouelette v. Viacom, No. cv 10-133-M-DWM-JCL, 2011 WL 1882780 (D. Mont. March 31, 2011) (no ADA claim re YouTube); Noah v. AOL Time Warner, 261 F. Supp. 2d 532 (E.D. Va. 2003) (same re: chat room); Earll v. eBay, Inc., No. 5:11-cv-00262-JF (HRL), 2011 WL 3955485 (N.D. Cal. Sept. 7, 2011) (same: no ADA claim re eBay); Cullen v. Netflix, Inc., 880 F. Supp. 2d 1017 (N.D. Cal. 2012) (same: no ADA claim re Netflix); Jancik v. Redbox Automated Retail, LLC, No. SACV 13-1387-DOC, 2014 WL 1920751 (C.D. Cal. May 14, 2014) (same: no ADA claim re

Virtualist courts say there are places in the heart and in the mind too. Those courts proclaim that the core meaning of the ADA is that “the owner or operator of a store, hotel, restaurant, dentist’s office, travel agency, theater, Website, or other facility (whether in physical space or in electronic space …) that is open to the public cannot exclude disabled persons from entering the facility and, once in, from using the facility in the same way that the nondisabled do.” Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999) (emphasis added); National Association of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196 (D. Mass. 2012) ( is a place of public accommodation within the meaning of the ADA); Carparts Dist. Center, Inc. v. Auto. Wholesaler’s Assn. of New England, Inc., 37 F.3d 12 (1st Cir. 1994) (it would be irrational to read the ADA so that “persons who enter an office to purchase services are protected by the ADA, but persons who purchase the same services over the telephone or by mail are not”).

There is a potential reconciliation of both camps: if the internet is merely another door to a brick-and-mortar entity, then the ADA applies to both. That works almost perfectly in explaining the cases. To understand “almost,” look at the pair of Netflix cases. Clearly, it has no brick-and-mortar store that we can shop in so the answer should be “no ADA coverage for its website.” That is exactly what happened in its California district court case (Cullen). But, in Massachusetts, the district court case (National Association of the Deaf) went the other way. Law school professors call such cases “outliers,” but in the courtroom today’s outlier sometimes becomes tomorrow’s conventional wisdom.

This, however, is a debate that may never play to conclusion in the courts. Instead, it is more likely to be resolved by regulation. The Department of Justice (which enforces the public accommodation provisions of the ADA) is expected to issue proposed compliance rules in 2015 (although, in fairness, those have been expected any year for the past five years). For some practical tips on how to maintain an accessible website, please see our related publication, Accessibility 2.0 – is your company’s website accessible to disabled individuals? 5 practical steps toward compliance.

Though not currently required of non-government websites, private companies can benefit from the Web Content Accessibility Guidelines (WCAG) (currently in version 2.0), which consist of general principles of accessible design. Internationally, such as in Australia, the Australian Disability Discrimination Act guidelines for enforcement now state that non-government websites and government websites, alike, must comply with WCAG. Elsewhere (e.g., the EU, France, Hong Kong, India, Ireland, Italy, New Zealand, and Norway), there are WCAG compliance requirements for government websites only, with business and other nongovernmental websites are under no such obligations.