Do we really have to caption online-only content? I want to caption everything, but how do I justify it to my organization when technically we may not have to?
This is a great but surprisingly complicated question. So let’s take a look at the current rules, then go beyond them to get the whole answer.
The Current Rules
The current FCC regulations around closed captioning of online video can be found here. The most important part is this one:
"The Internet closed captioning rules only apply if the video programming was shown on TV in the U.S. with captions."
That’s how the FCC has any enforcement power at all – it’s predicated on the content being shown on TV with captions. If that’s never happened, there is no online captioning requirement from the FCC (that last part will be important later).
So if you’re just looking for a quick easy answer, and you’re primarily regulated by the FCC, you could stop here. If it hasn’t been shown on TV with captions, it’s not required to have captions online. Cut and dry. Right?
Wrong! There’s more to it than that, and if you stop here, you’ve missed the whole picture. There are compelling reasons beyond the FCC that you should be captioning your online video.
The (Other) Regulatory Reason
Remember that from the FCC part like 4 sentences ago? Those italics indicate the presence of a looming gotcha!
While there may not be an FCC requirement for captions on your content, the regulatory landscape is always changing, and right now the winds are blowing in a way that could impact everyone who does online video. It all comes down to how important the online space has become in our public lives.
In 2010, the National Association of the Deaf brought a lawsuit against Netflix, arguing that they were violating the Americans with Disabilities Act because a website is a “place of public accommodation” (a specific term in the ADA) and thus video needs to have closed captions. The court agreed and allowed the lawsuit to move forward. Netflix settled and agreed to caption all of its content. More info here.
This was big. Really big. A court agreeing that a website is “a place of public accommodation” opens the door to a whole lot of regulatory interpretations – among them a closed caption requirement for video.
But then a different court did the exact opposite! In 2 different cases, the 9th Circuit ruled that websites are NOT places of public accommodation. And one of those cases was about Netflix captions. But that one was unpublished, so it’s not meant to be cited as precedent.
And in another lawsuit, the Department of Justice weighed in and said this:
“The ADA applies to websites of public accommodations, and…the ADA regulations should be interpreted to keep pace with developing technologies.”
I’m sure I’ve missed other cases – these are just the big ones that always get talked about. So what do we do?!
Basically, the overall regulatory question is far from settled, but it’s something that you need to be aware of and following if you’re working in online video. My best advice is to consult your lawyer, which is what you should do every time you’re presented with a murky legal question that has far-reaching implications for your business. And keep up on cases involving the ADA and online video, and specifically ones that touch on the definition of public accommodation.
But if you watch how people discuss websites, especially in the wake of the information warfare surrounding the 2016 US election, I think you can see a trend. Take this tweet from the head of the FCC, where he calls online platforms “America’s public square.”
My personal opinion: I think it’s only a matter of time until websites are considered a place of public accommodation, with all the rights and requirements that come along with that distinction.
The statute applies to the services of a place of public accommodation, not services in a place of public accommodation. To limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute.
The Metadata Reason
Maybe your lawyer has reviewed everything I just said and decided I’m dead wrong. It’s cool, it happens sometimes. But there’s another reason to caption everything you do: you’re creating rich metadata with long-term value.
Captions give you a record of every word that’s spoken in your content. And when you pair them with a video platform, all that data becomes searchable. If a viewer’s looking for something specific that gets mentioned in your video, but you don’t include it in the metadata, their only chance of finding it is if you’d included a caption file. For example, YouTube indexes caption files and includes their content in search, but only if you upload one yourself – they do NOT index the auto-generated captions.
This is also helpful for internal use. Need to cut together a video of every time someone said a certain word on your show? Or highlight times in the past where a politician has spoken on a certain issue? It’s trivially easy to track down those moments if you’ve got captions. At my shop we’re working on an archive of all of Austin City Limits, and it’s pretty magic to be able to search for how many times someone has said “Texas” on the show.
The Human Reason
When considering regulations and value adds, sometimes we lose sight of the simple reason: it’s the right thing to do. If you’ve ever helped someone who’s visually or hearing impaired navigate media consumption, you know how awful it is out there. Company after company, provider after provider, does the absolute bare minimum or finds a loophole so they don’t even have to do that. I recently encountered a cable box where you had to be able to see to turn on the options for people who can’t see. And this level of “we don’t care at all” is not rare.
So maybe when we consider these things, we should think about what a big impact a relatively small amount of effort can have for some people who are already struggling to enjoy things many of us take for granted.
The Cost Reason
I’ve saved the simplest reason for last: it costs $1 per minute to caption your content. That’s nothing in a production budget. Even ignoring everything else above, it’s now so cheap to caption content that by not doing it, you’re saying to the world that you won’t even put in the smallest effort to make your content accessible to everyone.
And that makes you the asshole.
Don’t be the asshole. Caption your content.