Seyfarth Synopsis: In what has been deemed the first of its kind, Netflix has entered into an agreement with the American Council of the Blind, the Massachusetts-based Bay State Council of the Blind, and a blind individual, to add “audio descriptions” to many of the programs offered on its video streaming and DVD rental service.

“Audio description” is narration added to the soundtrack of a video that describes important visual details that cannot be understood by viewers who are blind from the main soundtrack alone. Under the agreement, by December 31, 2016, Netflix will provide audio description for many popular titles in its streaming and disc rental libraries, as well as “Netflix Original” shows such as Orange is the New Black and House of Cards. If Netflix does not control the audio description rights to a title, it will “make commercially reasonable efforts to secure and offer audio description.” Adding audio descriptions to soundtracks describing what is happening visually on the screen can be more challenging that adding closed captioning for the deaf. Closed captioning translates the words and sounds on soundtrack into captions and requires little to no interpretation. Audio descriptions, on the other hand, require a description of what is going on visually and can be a much more subjective exercise.

Netflix will also make its website and mobile application accessible to individuals who are blind and use screen-reading software to access its site and app. Like most settlement agreements and consent decrees concerning website accessibility, this agreement adopts the Web Content Accessibility Guidelines 2.0 Level AA (WCAG 2.0 AA) as the accessibility standard. However, the agreement does not use WCAG 2.0 AA as the accessibility standard for mobile applications. Instead, the agreement adopts the British Broadcasting Corporation’s Mobile Accessibility Standards and Guidelines version 1.0 (“BBC Standard”) as the accessible standard for the mobile application. The use of the BBC Standard is unusual and departs from the Department of Justice’s practice of using the WCAG 2.0 AA as the accessibility standard for mobile applications.

Responding to the concerns of disability rights advocates is not new for Netflix. As we reported previously, back in 2012 Netflix entered into a consent decree with the National Association of the Deaf which brought suit under Title III of the ADA because Netflix allegedly did not providing adequate closed captioning on its video streaming service. As a result of that decree, 100% of Netflix’s US-based On-demand Streaming Content is now captioned or subtitled. It appears that when approached by disability rights advocates this time around, Netflix decided to work with them rather than litigate. The agreement is part of a continuing trend in which businesses are voluntarily taking action to make their websites and mobile applications more accessible.