Mastering the Video Accessibility Laws in 2021 [TRANSCRIPT]
SOFIA LEIVA: Well, thank you, everyone, for joining us. We’re so excited to have you here today for the presentation entitled Mastering Video Accessibility Laws in 2021 and Beyond. I’m Sofia Leiva from 3Play Media, and I’ll be moderating today. And today I’m joined by two speakers. We have Michal Nowicki, who is an attorney at The CommLaw Group. And we have Lily Bond, who is the VP of marketing at 3Play Media. And with that, I’ll hand it off to Michal, who has a wonderful presentation prepared for you all.
MICHAL NOWICKI: Thank you, Sofia. It is a real pleasure to be here. Thank you, everyone, for attending this webinar, whether you are watching it live or watching the recording. I am Michal Nowicki, and, as Sofia said, I am an attorney at The CommLaw Group. I specialize at the intersection of telecom accessibility and technology. And as a big part of that, I do extensive work with communications and video accessibility laws, such as the 21st Century Communications and Video Accessibility Act, CVAA, which is a big part of what I’m going to be talking about today.
So today, my presentation is going to focus on video accessibility, I mean, really under three federal laws– the CVAA; the Americans with Disabilities Act, ADA; and the Federal Rehabilitation Act of 1973. And just by way of background, the key to video accessibility is two parts, really. So the first part is making the video content itself accessible– that is, by including features such as closed captioning for the deaf and audio description for the blind, as well as making video playback equipment, or as the FCC calls it in its rules, “video apparatus,” which includes both equipment and user interfaces, accessible to people who use assistive technology, such as screen readers, screen magnifiers, and other assistive software.
So I will start my presentation– I will start with a presentation of video content accessibility, or video programming accessibility. So I’m going to start my presentation on the laws where the most guidance is provided. As you will notice, some laws, like the CVAA and the Telecommunications Act of 1996, provide clear accessibility requirements, whereas other laws require accessibility more broadly but offer a lot of flexibility, which has also led to a lot of ambiguity.
So I’ve got a slide here up on closed captioning requirements for television broadcasts. And I will preface this by saying that under the telecom laws under the jurisdiction of the Federal Communications Commission, there are two separate sets of closed captioning requirements. One set applies for linear television broadcasts, and the other applies for content streamed over the internet.
So when it comes to closed captioning on TV, virtually 100% of all televised programming, whether it’s live, near-live, or prerecorded, must be captioned. Now, this is an important point to keep in mind when I go on to talk about captions on the internet because, as I will discuss, there is a rule that basically says that if programming has been captioned on TV and then it’s reshown on the internet, it must also be captioned on the internet.
Captions must be “accurate, synchronous, and appropriately placed.” So the FCC has specific quality standards for captioning. And video programming distributors must pass through captioning. So it’s important that it’s included in the video stream itself, but also that if you are, say, watching a program through Comcast or DirecTV or some other cable or satellite TV platform, that the provider passes those captions through.
Now, there are some exceptions to these requirements. For example, foreign language programming that isn’t Spanish doesn’t need to be captioned. I don’t think there’s too much of that to worry about. Primarily textual programming, such as TV guides and bulletin boards– the reason that those do not need to be captured is because the information is already conveyed in a text format that people with hearing loss can easily access.
Another exception is late night programming shown between 2:00 AM and 6:00 AM local time. And again, that is probably because, at that time, most people don’t watch television. And a lot of times it’s also reruns of programs that have been aired at other times during which captioning is required.
Interstitials, promotional and public service announcements. There is also a programming on new networks exception. This is basically when a new network begins broadcasting, they have four years to come into compliance. So this is really to give them a bit of a break to basically get on their feet, get all set up, and then they can get their captioning together.
And then captioning is not required if it would exceed 2% of a provider’s gross revenues. And finally, there is also an exception for locally produced educational programming. So, again, with all these exceptions, as a practical matter, they are not really much of a concern. They don’t have much of an impact on the viewing experience. For some of these programs, even if they are not required to be captioned, they still customarily are for the convenience of people who do need captions.
All right. Let’s move on to closed captioning on the internet. So the general rule is that full-length video programming must be captioned if it previously aired on TV in the United States– that is, on linear television. And the quality standards that apply to closed captioning of televised programming also apply to online programming that was previously shown on television. So, basically, the important thing is to make sure to get the captions in the same quality as they were provided on the linear TV screen for anyone who’s involved, and making sure that they get passed through, uploaded to, the internet reshowings.
So as with the exceptions to programming on linear television, there are some exceptions to programming delivered over the internet. One of these exceptions is– well, I’ll start with the biggest exception. And the biggest exception is really programming that wasn’t actually shown on television. I guess, technically speaking, it’s not an exception, but, conceptually, a lot of people may view it as an exception.
So the FCC rules do apply only to content that was first shown on television. So, for example, an episode of NCIS or Family Guy that is then shown on the network’s website or through their mobile app, that would need to be captioned. But the FCC rules would not apply to, say, a Netflix Original because it wasn’t originally shown on linear television.
Then we have consumer-generated media that was not previously shown on television. So that could be things of, I don’t know, somebody creating an instructional video on how to do something, maybe how to operate a digital product, and posting it somewhere. Also, the rules do not apply to video clips posted to third-party websites. So this is an exception that I will parse a little bit more.
So let’s go back to the example of an episode of NCIS. NCIS is shown on CBS. If a video clip of it is posted to the CBS website or its streaming service, which I believe is called Paramount+, that clip would need to be captioned. But if somebody uploads it, say, to YouTube– hopefully with the appropriate copyright permissions– then the FCC rules would not require that clip to be captioned.
So those are the basic rules for captioning. I will move on to audio description next. Audio description is the insertion of auditory descriptions of the visual elements of a video into the natural pauses of a dialogue. And, again, I will start with the FCC rules that apply to televised broadcasts. Those rules are pretty clear.
The top four broadcast networks and the top five non-broadcast networks must provide at least 87 and 1/2 hours of audio described content per calendar quarter. This is via the secondary audio stream that is also used for foreign language programming and emergency alerts. 50 of those hours must be for children’s or prime time programming. And MVPDs, which stands for Multichannel Video Programming Distributors– basically, our cable, satellite, and telco providers– must pass through this audio description.
And they need to do this if they have the technical capability to do so and when the secondary audio track is not being used for a conflicting purpose, such as foreign language audio. If a program airs with audio description on the secondary audio track, then any subsequent airings must also provide audio description, unless, again, the secondary audio track is used for a conflicting purpose.
There are some exceptions, again, to audio description rules. For example, the requirements do not apply to live and near-live programming. I think everybody knows what live programming is. Near-live programming is– I would say, the classic example of it is if you have, say, a broadcast of the Grammy Awards or the Oscars. Well, when it’s shown on the West Coast, it’s a tape-delayed broadcast so that people don’t have to watch it at an inconvenient time when they’re still maybe about their business or at work. And the rationale for that is that there really isn’t– well, the cost of providing live audio description is much higher.
And there are also exceptions for small MVPDs. There is what we call the HBO exception, which is for programming that reaches less than 50% of households. The premium networks basically fall for that exception.
I know I’m running a little behind on time, so I’ll move on to the emergency audio alerts now. Basically, the key there is that emergency alerts must be– visual alerts, the visual calls, must be accessible via the secondary audio stream to people who are blind or low vision. And any auditory alerts need to be accessible via captioning or an equivalent method to people who have hearing loss.
Let’s see here. And also, emergency alerts and closed captioning must not block one another. That’s important. And all emergency information must supersede other information on the secondary audio stream.
So at this point, some of you may be wondering if these CVAA rules about audio description and captioning have left a lot of gaps. And there are definitely some gaps, but this is where other laws, such as the ADA and the Federal Rehabilitation Act, fill those in. So I’ll talk about the ADA first.
The key title here to focus on are Title II and Title III. Title I deals with employment, so we don’t need to worry about that too much. Title II prohibits discrimination by nonfederal public entities– so, basically, at the state and local level, also state universities. Title III prohibits discrimination by privately owned and operated places of public accommodation.
So I will start with what’s clear here, again, and that is the audio description rules that pertain specifically to movie theaters. Basically, digital exhibitions of movies must have audio description, which is delivered typically via a hand-held device that is provided to patrons who request it. And there are specific rules on making sure that there is adequate staffing to provide audio description, to troubleshoot any audio description issues, to troubleshoot issues of activation of the equipment. And movie theaters must also provide closed captioning via a similar type of device. If they cannot, they can also satisfy their obligations by providing open captioning, which everybody can see.
Now, once we get outside the movie theater, this is where things get a bit more murky. And this is where things have led to litigation, because there is no specific guidance. So here is what we have. Basically, under both Titles II and III of the ADA, covered entities are required to make sure that any communications with people with disabilities and their companions are as effective as communications with people without disabilities. And the ADA further requires covered entities to provide necessary auxiliary aids.
So neither of these requirements specifically mentions audio description, but the argument for bringing in audio description and closed captioning is that, obviously, audio description is necessary to communicate the visual elements to somebody who is blind, and closed captioning is necessary to communicate the auditory elements to the deaf. I’m not going to get too much into the litigation aspect of this, for the sake of time. But the key case a lot of you may have heard about is National Association of the Deaf versus Netflix. This is where the NAD sued over lack of captioning, and that was really a revolutionary, landmark case that led to many streaming providers, such as Netflix and Amazon Prime and others, to include captioning in their libraries. There have also been audio description cases. Recently, for example, the American Council of the Blind settled a dispute with Hulu over a lack of audio description. So I will leave the litigation discussion at that.
So now let’s go to the Federal Rehabilitation Act. And the key provisions here are sections 504 and 508. Section 508 requires federal agencies to develop, procure, maintain, and use electronic information technology that is accessible to employees and members of the public with disabilities. And Section 508 specifically incorporates the Web Content Accessibility Guidelines 2.0, Levels A and AA, which require audio description and captioning. Section 504 essentially extends these requirements to programs receiving Federal financial assistance. So this is where you get your education institutions, your health care institutions, all that stuff coming in.
All right, I will quickly go into video equipment here. So, obviously, it isn’t very helpful if your videos have captioning and audio description but then a blind person pulls up a video with a screen reader and all they hear is, unlabeled one button, unlabeled two button, unlabeled three button, and they’re like, OK, so how do I find the play button? How do I rewind this video? How do I fast forward it? So to fill that gap, the CVAA also has specific equipment requirements.
So first of all, accessibility features must be passed through– I already talked about this– at a high level. So this applies to both apparatus and recording devices. Basically, the requirements apply to devices that can play video together with sound.
And then as far as user interfaces and user interfaces of devices that can play on-screen video together in sound must be accessible in real-time, and captioning and audio description must be activated “through a mechanism that is reasonably comparable to a button, key, or icon,” such as a voice command or a touch gesture. And then the CVAA also has usability requirements, which means that not only do the products need to be accessible themselves, but also product information, such as bills, user installation guides, those also must be made available to customers with disabilities in accessible formats.
And then there are some exemptions. Basically, devices that can play only display-only monitors– we have a picture here of a digital camera to illustrate the point. Professional or commercial equipment not typically used by consumers– again, most accessibility laws are aimed at providing access to consumers, not so much for the enterprise sector. There is also another primary purpose waiver. So if there is a device, for example, such as an e-book reader, that has communications features where people can chat with each other, but they’re really only used to enhance other experiences and not really used much, it is possible to get a waiver from making those accessible.
And that is my presentation. So I will turn it over to Lily, then.
LILY BOND: Thank you so much, Michal– great presentation and background, and just so much knowledgeability around these laws. I’m going to share my screen and dive in to my portion of the presentation. I’m really going to focus on, given all of this legal context, what are the trends we’re seeing? And how do you comply with these laws as a publisher? What are some of the things you should be thinking about? And what are some of the workflow requirements and publishing requirements that you need to know how to implement so that you can achieve these goals?
So I want to start with a few trends to really kind of highlight why this is so important right now, really more than ever. Obviously, streaming media, in particular, was trending upwards prepandemic, but since 2020 and since COVID hit, the online video market has just exploded.
A few stats on video in 2021– we saw a 60% increase in video consumption globally in 2020. 79% of companies expect to host hybrid events in 2021. That’s part virtual, part in-person. 76% of people don’t see their video consumption slowing down post-pandemic. And 91% said the pandemic has made video more important to their brand. So even as we start to return to in-person in some contexts, we’re really still seeing a big increase in video and an expectation for video that we don’t expect to slow down.
And, ultimately, that means not only are more people watching video, but more people with disabilities are accessing video than ever before. And, ultimately, that’s a lot of people. 48 million people in the United States are deaf or hard of hearing, which is 20% of the population. 24 million are blind or low vision, which is 10% of the population. And people with disabilities have an annual disposable income of $1.2 trillion, and that is missed when we don’t make content accessible. So there’s a really great business case for making content accessible, in addition to the obvious legal requirements to accommodate this population.
And when we look at video and we look at people with disabilities accessing video, most videos by themselves aren’t accessible. And in order to be accessible, your videos need several different accommodations. Michal has touched on a lot of this. But the requirements are really transcripts for audio content, closed captions for video, audio description for video, and live captioning for live video events. And, of course, all of that needs to be displayed on an accessible player, as Michal stated, so that users with disabilities can access the content and the accommodations available to them.
And accessibility is a legal requirement for all of these reasons. Michal touched on these. The major laws that we’re looking at here for streaming video are the CVAA requiring captioning for online video content that previously appeared on television. The FCC has specific caption quality requirements, to make sure that those captions are accurate. The ADA and the Rehabilitation Act impact video accessibility for government and more public and private sector businesses. And then the Web Content Accessibility Guidelines, WCAG, 2.1, has levels of achievement and a clear list of guidelines stating what it means to make your content accessible.
So speaking of trends, as we’ve seen a huge influx in digital content, I have on the screen a list of logos with the statement, “These companies all have something in common.” The logos are Winn-Dixie, Netflix, MLB, Lyft, MIT, Target, Harvard, Hobby Lobby, FedEx, and Bank of America. And what all of these companies have in common is that they’ve all been sued under the ADA for failing to make their digital content accessible. In some cases, this is specific to video. And in other cases, it’s contextual to their broad digital accessibility. But this is a rising trend that we’re seeing, is lawsuits under the ADA for failing to make websites accessible.
And they’re not alone. Over 4,000 other companies have faced litigation under the ADA for web accessibility. And, ultimately, we’re seeing a continued increase in lawsuits. Over one accessibility lawsuit is filed every hour. There’s a chart on the screen showing an increase in lawsuits yearly since 2018. And in 2021, we’re projected to have about 4,200 Americans with Disabilities Act lawsuits for web accessibility.
One of my favorite quotes in this space comes from Arlene Mayerson, who argued the case for the National Association of the Deaf in the case against Harvard and MIT, who were sued for failing to caption their online course content. And I think it really clarifies the importance of making digital content accessible in the same way you would make physical spaces accessible. And the quote reads, “If you are a hearing person, you are welcomed into a world of lifelong learning through access to a community offering videos on virtually any topic imaginable, from climate change to world history or the arts. No captions is like no ramp for people in wheelchairs or signs stating ‘people with disabilities are not welcome.'” Just making such a strong and clear case for extending the Americans with Disabilities Act requirements to the web.
So I want to talk a little bit about some of the requirements for closed captioning and audio description and how publishers can aim to achieve what, in many cases, are very complicated and specific requirements. So for the CVAA, let’s just do a quick review here. Pre-recorded content, recorded more than 24 hours ago, that previously appeared on television with captions should be closed captioned when published online. For example, if you are a Bachelor fan, like I am, then you might watch full episodes of The Bachelor streaming on ABC. This would fall into this bucket.
We also have requirements for live and near-live video. This means video recorded within the last 24 hours. This needs to be captioned within 12 hours of airing for live video and within eight hours of airing for near-live video when it’s published online. It’s a very tight frame to get captioning completed. And, finally, you may publish clips and montages from these full-length videos, and the above requirements apply equally to full-length programming clips and montages. So if you have a live event and you create 20 clips from that and you publish all of them online, you need to have those captioned within eight or 12 hours of those going online, depending on whether those were live or near-live.
And I mentioned the FCC quality requirements because those apply to the CVAA. So it’s not enough just to add captions to those videos. They have to be accurate captions. So I have a screenshot of a video that JetBlue put out right after the pandemic. And it gained a little bit of internet fame for all of the wrong reasons, which is that they used automatic captions on the video.
And the caption reads, “Hello, my name is Joanna Geraghty and I’m Jeff blues President and Chief Operating.” And it’s never a good thing for your brand when the brand name is inaccurately captioned. So this would not comply, certainly, with the requirements to create an equal experience in terms of quality.
So you may be thinking, wow, those requirements are really tough. How on Earth can I do that? So there are a lot of great tools out there to help comply with these requirements and make them feasible for publishers. The first is thinking about building out an API workflow. If you have content that aired at 8:00 PM on Thursday and you need it published online by 8:00 AM on Friday, you can’t be going and uploading that file and downloading a caption file and going back to your video player and uploading that caption file to publish. That’s just not a workflow that is manageable for publishers under these requirements.
So an API workflow allows you to automate captioning requests via API with your captioning platform. So it’s part of your production workflow. You should be able to tag your video or submit a captioning request automatically in your production workflow process, have it sent to your captioning provider, and published back to your video directly when the captions are complete.
You can also consider things like progressive delivery, which would post back first the speech recognition of the caption as soon as it’s done, and then the edited version as soon as that’s done, and then the QAed version of that caption file as soon as that’s done. These are ways in which you can help– these are some ways in which you can achieve these goals by getting something out there as quickly as possible and meet the requirements within the right time frame. You also need someone that will give you guaranteed turnaround. So if you have that eight-hour requirement, you cannot have an estimated deadline or an estimated turnaround. You need to feel confident that you’re going to get those captions back within a specific time frame with a hard deadline that the company has SLAs on.
And then you need to think about scalability. Most organizations that need to comply with the CVAA are publishing a lot of content. This applies across other laws, too. If you’re a company implicated by the ADA, you probably have a lot of video, and you need an organization that can scale with you and handle a lot of content at once.
Seeing it in action– one example of how our customers have met these needs. We work with some sports broadcasters who publish a lot of clips of sporting events within the live and near-live requirements under the CVAA. And under that eight-hour time frame, there is no wiggle room. So they’ve set up an API workflow with us where they submit videos directly via API, all automated as part of their production workflow, and setup custom guaranteed deadlines of four hours with us. And with that, we’re able to deliver captions back to their player well within the time frame they need.
And many organizations really require that type of deadline compliance because there’s a big fear of not complying with the law. And a lot of organizations will take down content if it’s not captioned within that time frame so that they’re not potentially liable under the requirements for failing to comply with that eight-hour timeline. So that makes an organization lose a lot of money. A lot of advertising money is associated with videos that they’re publishing online. Taking them down really hurts the business. So you need someone that will allow you to meet those goals in an effective way.
Next, looking at legal requirements for audio description– the CVAA really only applies audio description rules to broadcast and only to a subset of broadcast. So right now, the top four broadcast and top five nonbroadcast networks must provide audio description. And I know the FCC has a report to Congress where they’ve considered expanding CVAA requirements to Video-On-Demand. The answer right now is, basically, not now, not going to happen right now. But, I think, because the question is being asked, it’s a sign for the future that this is going to come up again. And in the future, I would expect CVAA requirements to expand here.
Michal mentioned the ADA and did a great job of describing the impact here. I think a lot about cases of not enough compliance. So let’s take Netflix, the Netflix lawsuit. They were sued under the ADA for failing to caption their Originals. Their Originals were not covered under the CVAA. So, similarly, with audio description, the CVAA doesn’t require Netflix to audio describe any of their content. But the ADA has a really broad application that does. And Netflix did enter litigation and, obviously, kind of worked out an agreement on audio description instead of going into the lawsuit process.
But just because you don’t have to comply with one law doesn’t mean you don’t have to comply with another. And this is the broad application of the ADA that we’re seeing in litigation. And then Section 508 of the Rehabilitation Act does require audio description. And there’s a working group actively working towards bringing audio description for streaming video to the forefront there.
I recognize that not everyone is familiar with audio description. And I want to give a quick example here just to share the impact of audio description and the requirement for blind viewers. So audio description narrates the visual information in a video, to create an audio track description of that file. And in many cases, videos are completely inaccessible to blind viewers without it.
As an example, I would ask that any of our sighted audience members close their eyes. And I’m going to play a quick video without audio description. And then I’ll play it with audio description. And I think the impact will be noticeable. I will let you know when to open your eyes.
[VIDEO PLAYBACK]
[MUSIC PLAYING]
– [GIGGLES]
Ah. Ooo. Hello.
[GIGGLES]
[INHALES BIG BREATH]
[SIGHS]
[GASPS]
Ah, ah, achoo!
[DRUM ROLL]
[GASPS]
[END PLAYBACK]
LILY BOND: So if everyone was truly closing your eyes, I am fairly confident most would have no idea what that video was about. And now I’m going to play the same quickly with audio description.
[VIDEO PLAYBACK]
[MUSIC PLAYING]
– [GIGGLES]
[END PLAYBACK]
LILY BOND: Oops, sorry. That’s the same one.
[VIDEO PLAYBACK]
[MUSIC PLAYING]
– From the creators of Tangled and Wreck-It Ralph, Disney. A carrot-nosed, coal-eyed snowman shuffles up to a flower peeping out of deep snow.
– Ah. Ooo. Hello.
[GIGGLES]
[INHALES BIG BREATH]
– He takes a deep sniff.
– [SIGHS]
[GASPS]
– Ah, ah, achoo!
[DRUM ROLL]
– His nose lands on a frozen pond. A reindeer looks up and pants like a dog.
– [GASPS]
– Seeing the reindeer slip on the ice, the snowman smiles and moves towards him.
[END PLAYBACK]
LILY BOND: So just a great example of how audio description can not only make a video accessible, but make it quite delightful. That was a trailer from Frozen. So how can you publish audio description at scale? So the first thing to look at is automation and publishing.
When you’re publishing audio description digitally, you need to look at things like integrations. What video platforms support audio description, and can you integrate that with your captioning and audio description provider? Can you do this via API similarly to captioning? Traditional audio description providers have a really long production workflow. Requires using voice actors, scripting, audio editing, and that leads to a long turnaround.
There are options becoming increasingly available that have more technical solutions that will give you a faster turnaround to meet your legal requirements. And audio description is traditionally very expensive, much more expensive than captioning. Working on a more scalable solution means working with providers and more technical solutions with audio description to make it an attainable price point.
And Michal touched on some of the audio description legal enforcement we’ve seen. Some of the names on this side are AMC, Hulu, Netflix, UC Berkeley, and Hamilton. There has been litigation and complaints specific to audio description. And these are some examples.
Another publishing challenge that people face is backlogs of content. So the way that you can approach that publishing challenge is to find a really flexible solution that will give you good discounts for publishing a lot of content that you might need– this content may not be urgent for you to caption or describe. Can you get better discounts with offering a 30-day turnaround? If you work with your providers to give you some flexibility and it’s a provider that can handle scale, there are some flexible ways to approach backlog projects that also use some of the tools like automation and API workflow so that it’s not an internal resource challenge as well.
And, ultimately, the goal here is that video accessibility shouldn’t be hard. Think about solutions with online platforms, think about using automated workflows, think about custom APIs, and think about what will give you peace of mind. What will give you that legal compliance? What will give you guaranteed accuracy and deadline compliance and technical partnership?
And that is it for me. Michal and I are more than happy to take questions. You can also feel free to reach out to either of us via email. Michal’s email is [email protected], and mine is [email protected]. And I will stop sharing, and we can take questions.
SOFIA LEIVA: Great. Thank you so much, Lily and Michal, for such a wonderful presentation. We have a couple that have already come in, so we’ll dive right in. But please feel free to keep asking questions, and we’ll try to get to as many as possible.
The first question we have here is, “Is there a way to find out what accessibility laws apply to certain industries with video content on YouTube, if there are any?”
MICHAL NOWICKI: So this is Michal. I’m happy to take a first stab at this one. So with YouTube videos, I think the first thing to look at is if they’re full-length videos of video programming or video clips. And so when it comes to captioning, for example, that most likely the CVAA would not apply to a video that is posted on YouTube. But it is possible that the ADA may apply its– the short answer is that it’s a very fact-specific situation, where getting the guidance of an experienced attorney would be most helpful to actually evaluate what kinds of videos are they and in what context these videos are being posted.
And those are the basic requirements. I don’t know if, Lily, do you want to add anything? 3Play might have some resources also on this.
LILY BOND: Yeah, I think I would approach this thinking about your industry and what laws apply to your industry and then where you’re publishing that YouTube content. So YouTube as a platform with user-generated content, as Michal stated, has an exemption from the CVAA. But if you’re an organization that provides a public accommodation– say you’re a university and you’re publishing that YouTube video on your website as well– that content could be implicated under the ADA.
So I would think about how you’re publishing the video, whether you’re using YouTube as a player or as a platform, and what industry you are covered under and which laws apply there.
SOFIA LEIVA: Great. Thank you. The next question we have here is, “Do ADA requirements apply to distributors of video programming over the internet or just the video programmers themselves?”
MICHAL NOWICKI: So the ADA– that’s where the ADA gets a little bit murky because it is a very broad law, and a lot of it is unclear. For example, when it comes to closed captioning and audio description, how much content needs to be described or captioned? Or also, what if there is a conflict, a licensing conflict, where a distributor may not have the licenses to captioning or audio description?
Those are areas of the law that are very much unsettled still at this point. But if the distributor is providing a public accommodation, or if the distributor is an entity receiving Federal financial assistance under the Rehabilitation Act, then, yes, that distributor may be subject to video content and video player accessibility requirements.
SOFIA LEIVA: Great. Thank you. The next question we have here is, “Can you mention any lawsuits, if there are any, related to digital agencies and advertising video over the internet?”
MICHAL NOWICKI: Could you please repeat that question, Sofia?
SOFIA LEIVA: Of course. The question is, “Can you mention any lawsuits related to digital agencies and advertising video over the internet?”
MICHAL NOWICKI: Oh, that’s a good question. Lily, can you think of any examples off the top of your head?
LILY BOND: I can’t think of any examples off the top of my head. I think it likely depends on the context, but it’s an interesting question and one I’m happy to look into and respond to offline.
MICHAL NOWICKI: I would definitely be happy to look into it as well. Advertising is an area that I haven’t really specifically looked into it much. It may fall outside the umbrella of the ADA. It wouldn’t apply under the CVAA. There are requirements under the CVAA relating to making sure that information about accessible products that is posted on websites is in accessible formats, but that doesn’t really address the advertising aspect. So this is definitely an interesting issue to investigate further.
SOFIA LEIVA: If we find any follow-up resources, we’ll make sure to also include those in the recording page. The next question I have here is, “Is there audio description requirements for streaming companies like Hulu, Netflix, Amazon also applicable for content available in Spanish or other languages?”
MICHAL NOWICKI: So as far as requirements for streaming companies like Netflix, Hulu, Amazon Prime, those companies are not generally covered by the CVAA because, as Lily and I both mentioned, the audio description requirements apply specifically to broadcast television. And while the captioning requirements are broader, they do apply specifically to content that was shown on broadcast television initially. But this is where the ADA comes in.
And, again, unlike the CVAA, the ADA does not mention– does not have specific guidelines in terms of how much content needs to be audio described or captioned. It doesn’t have any specific quality standards. So tying this into the discussion of foreign language programming, if a person with a disability does not speak English, or even relies primarily on Spanish language programming, then the ADA may require that programming to be captioned in Spanish.
I mean, the ADA in no way is restricted to English language content. It imposes broad obligations to provide effective communication and auxiliary aides to individuals with disabilities. And that includes individuals who rely on Spanish or another foreign language, for that matter, as their primary language.
SOFIA LEIVA: Great. Thank you. The next question we have here is, “If I’m creating training videos that would be on the internet, not broadcast, and I’m verbally describing the items and its features, which happen to be the only item on the screen, is that considered appropriate for audio description?”
MICHAL NOWICKI: It could be. If the description accurately captures all the relevant visual content, that could satisfy the requirements. In that case, the CVAA would not apply, so we’d have the broad laws like the ADA and the Rehabilitation Act that would come into play. And since those do offer a greater degree of flexibility when it comes to compliance, it may be sufficient.
But it would depend on– basically, the key question that would need to be answered is whether they satisfy those effective communication requirements which are context specific. For example, I’ll give a quick example of the effective communication requirement outside the context of video production. So there is case law that has held that restaurants are not required to provide Braille menus to blind customers if they have adequate staff who will review the menus with them– that is, enough to communicate with them effectively.
But then when it comes to, for example, legal documents, such as having access to mortgage documents, having somebody read those out loud to someone who requests them in Braille or an electronic format, that would not be effective communication, due to the legal significance and the relationships that those documents create. So that’s the kind of situation we are dealing with in this particular context when it comes to alternative approaches to what is known as classic audio description.
Lily, do you want to add anything on that? Do you have any other experiences with that?
LILY BOND: Yeah, I think that’s a great response. I typically believe if all of the key visual information that you need to understand, the context of the video or training, is described, then audio description as an additional tool is not required. You may have heard me describing the visual information on my slides when it was relevant to the conversation. That’s an example of what you could do to avoid needing to audio describe a file.
SOFIA LEIVA: Great. Thank you. I believe we have time for one more question. And this question is, “Is providing a transcript instead of closed captioning considered equal or sufficient to providing captioning?”
LILY BOND: So the Web Content Accessibility Guidelines are what I would look to here. They require transcripts for audio-only content. But for video content that includes synchronized video and audio, the requirement is closed captioning, and transcription is not sufficient for that need.
MICHAL NOWICKI: And I think the reason behind that is the experience of audio-only production versus video programming is a lot different. For example, if you have a podcast, typically– I mean, some podcasts can have video, but typically they are audio only. So having a transcript there– just a transcript makes a lot more sense.
But when it comes to video, if you just provide a transcript, you lose that synchronous experience of having all the elements in one place. I mean, thinking about it from a practical standpoint, a deaf person would most likely need to watch the video and maybe look at the transcript simultaneously, have it pulled up in a different window or have it printed out or something. I am not deaf myself, but I would think that that would not be a very pleasant viewing experience.
SOFIA LEIVA: No, that’s very true, Michal. Well, that’s all the time we have for today. And I just want to thank you both, Lily and Michal, for taking the time today to go over all the laws that we need to know this year. I hope you all have a wonderful rest of your day. Bye.
LILY BOND: Thank you. Bye.
MICHAL NOWICKI: Thank you. Bye, everyone.Mastering Video Accessibility Laws in 2021