July 12, 2013, 4:48 PM

eBay asks an appeals court to reject a deaf user’s accessibility claim

The case raises the question of whether the ADA applies to the web.

Paul Demery

Managing Editor, B2B E-commerce

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EBay Inc. filed a brief in a federal appeals court this week arguing that the court should reject an appeal by Melissa Earll, a deaf consumer who contends that eBay is breaking federal law by making it impossible for her to sell products on eBay.com.

Earll filed a lawsuit against eBay in 2010, claiming that eBay was in violation of the Americans with Disabilities Act and two California state laws that require commercial entities, or “places of public accommodation,” to be accessible to people with disabilities. She says she informed eBay over a six-week period in 2008 that she was unable to register online as a seller because of an identification process that required her to use a telephone to receive a confirmation code, but received no help.

The U.S. District Court for the Northern District of California rejected Earll’s argument in September 2011, finding that eBay, as an Internet business, was not considered a place of public accommodation under the ADA. That federal law was enacted in 1990, years before the popular use of the Internet, and refers only to physical properties as places of public accommodation.

Earll appealed her case in April of this year to the U.S. Court of Appeals for the Ninth Circuit. “The ADA must apply to eBay,” says her filing with the appeals court, which was filed by Chicago-based attorney Michael Aschenbrener. “Any other result frustrates the letter and spirit of the ADA. To rule otherwise would require this Court—which is located in close geographic proximity to the headquarters of Google, Facebook, Netflix, and countless other Internet-only businesses—to conclude that the Internet, in 2013, is not an important part of the social and economic mainstream in America. Such a conclusion is patently absurd.”

EBay’s filing in response, however, contends that the appeals court should uphold the district court’s ruling, contending that “Internet web sites are not real, physical spaces” that the U.S. Congress intended to regulate when it passed the ADA, and that only a new law could cover web sites. “Thus Congress must weigh the costs and benefits of extending antidiscrimination laws designed for real, physical spaces to the Internet,” eBay says in its appeals court filing, which was prepared by Washington, DC, attorney Bryan M. Killian.

The U.S. Department of Justice, which oversees enforcement of the ADA, is expected to release new proposed rules this year to specify how accessibility rules for disabled people would apply to web sites.

Meanwhile, there are other cases debating the issue of whether the ADA applies to e-commerce sites. For example, in a lawsuit brought by the National Association of the Deaf against Netflix Inc., No. 9 in the 2013 Internet Retailer Top 500 Guide, a federal court found that a web site could be considered a place of public accommodation under the ADA. Netflix subsequently settled the case, agreeing to put captions on streaming videos

For its part, EBay has been taking several steps to establish services to assist disabled sellers and buyers on eBay.com.

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