Social Media Implications for Title II and Title III Entities

Research Guide Summary: Social Media Implications for Title II and Title III Entities

Compiled by Abbey C. Eckstein

Edited by Jill L. Bezyak and Martin E. Blair

June 2019

1. Rehabilitation Act of 1973, Section 508 Amendment – Federal Rules

In researching whether social media is an extension of a website for ADA purposes, the Rehabilitation Act of 1973, Section 508 Amendment provides explicit information regarding the accessibility of electronic and information technology for those who have disabilities. The Section 508 Amendment, enacted in 1998, specifies that each Federal department or agency shall ensure that, regardless of the type of medium of the technology, all electronic and information technology is accessible.https://www.dol.gov/agencies/oasam/regulatory/statutes/section-508-rehabilitation-act-of-1973  If making the electronic information technology accessible places an undue burden upon the Federal agency, then the Federal department must provide individuals with disabilities “an alternative means of access that allows the individual to use the information and data.”29 U.S.C. § 794d(a)(1)(B), https://www.law.cornell.edu/uscode/text/29/794d (note that this is the statute for Section 508).

In relating Section 508 to the ADA, electronic “content” is “all types of public-facing content,” including “content encompassing all forms of electronic information and data.”https://www.federalregister.gov/d/2017-00395/p-19  Social media is expressly addressed in the definition of “public-facing.”  The definition of “public-facing” is, “Content made available by an agency to members of the general public.  Examples include, but are not limited to, an agency Web site, blog post, or social media pages.”https://www.federalregister.gov/d/2017-00395/p-384

Thus, Federal agencies have “responsibility for all content that they develop, procure, maintain, or use,” including social media.https://www.federalregister.gov/d/2017-00395/p-124, codified in 29 U.S.C. § 794d – Electronic and information technology. Therefore, it must be made accessible to people with disabilities.  Additionally, federal agencies are responsible for any third-party content that is “added to and maintained on their sites,” and need to make it accessible.https://www.federalregister.gov/d/2017-00395/p-124, codified in 29 U.S.C. § 794d – Electronic and information technology. Lastly, although social media is an extension of a website, a federal agency is not prohibited from “using an inaccessible social media platform . . . as long as the agency provides individuals with disabilities an alternative means of accessing the same information and data.”

2. Title II – State and Local Governments

Title II of the ADA expressly addresses state and local governments and prohibits them from “discriminating on the basis of disability for all public services and programs.”https://www.boia.org/blog/web-accessibility-and-local-governments-what-you-need-to-know; https://www.ada.gov/ada_title_II.htm  Since websites and social media are available to the public, they must be made accessible in order to be in compliance with the ADA and the Rehabilitation Act of 1973.  Although the ADA has not explicitly mentioned social media, Title II addresses website accessibility, stating, “The [ADA] and, if the government entities receive Federal funding, the Rehabilitation Act of 1973, generally require that State and local governments provide qualified individuals with disabilities equal access to their programs, services, or activities,” unless this would impose an undue burden or fundamentally alter the nature of their programs, services, or activities.https://www.ada.gov/websites2.htm

Additionally, any publicly available videos must be made accessible under Title II, thus including any videos incorporated into social media.https://www.3playmedia.com/2019/02/26/ada-video-requirements/

3. Title III – Public Accommodations and Commercial Facilities

For Title III, because all individuals have access to “the full and equal enjoyment of the goods and services at any place of public accommodation,” there are specific anti-discrimination statutes (42 U.S.C. § 12181–12189) to prohibit discrimination from public accommodations and commercial facilities.  There is supposed to be “broad coverage” in determining that there is protection for those with disabilities under the ADA.https://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&SID=2ab2aab2d3d2fd0f544a5ce7aad8f04c&rgn=div5&view=text&node=28:1.0.1.1.37&idno=28#se28.1.36_1101 The focus should be “whether entities covered under the ADA have complied with their obligations and whether discrimination has occurred.”28 C.F.R. § 26.101(b), https://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&SID=2ab2aab2d3d2fd0f544a5ce7aad8f04c&rgn=div5&view=text&node=28:1.0.1.1.37&idno=28#se28.1.36_1101  As discrimination is to be interpreted broadly, this leans in favor of social media being made accessible to those with disabilities.

However, in order to determine whether Title III entities need to make social media webpages accessible, social media must fit within the definition of “public accommodation.”  There are three main criteria for places of public accommodation and commercial entities: 1) its operations will affect commerce; 2) it must not be intended for nonresidential use by a private entity; and 3) it must fall within one of twelve categories listed in 42 U.S.C. § 12181(7) (including places of lodging, places of public display or collection, places of recreation, places of education, service establishments, etc.).https://www.law.cornell.edu/uscode/text/42/12181

4. Title III Litigation Re: “Public Accommodation” and the Circuit Court Split

There is a split among circuit courts regarding whether social media is considered a “public accommodation” under the ADA and is thus subject to the ADA accessibility standards.  Some circuit courts (the Third, Fifth, Sixth, and Ninth) require places of public accommodation to have a nexus to an actual, physical place.  Under this approach, social media would need to have a connection to a physical place in order to be accessible under the ADA.  On the other hand, other circuit courts, including the First and Seventh, do not require public accommodations to have a physical nexus in order to be made accessible.  Since there is a split among circuit courts, whether social media needs to be made accessible under the ADA depends on the circumstances of the case and where the case is brought.  This could be clarified in the future by more concise legislation or if the United States Supreme Court decides a case regarding this issue.