What is a porn website’s duty to accommodate?

A deaf man says the lack of closed captions in online porn is discriminatory

What is a porn website’s duty to accommodate?

A deaf man is suing porn websites for discriminating against him.

On Jan. 16, Yaroslav Suris filed a complaint in the U.S. District Court for the Eastern District of New York against Pornhub, a Canadian pornographic video-sharing website, as well as parent company MindGeek and sister websites RedTube and YouPorn, reported Global News.

Suris, who is deaf, alleged that the absence of a closed-captioning feature in most of the website’s videos amounted to discrimination against deaf and hard-of-hearing people under the Americans with Disabilities Act.

Suris explained that the lack of captions prevented him from appreciating the videos because he could not fully understand the storyline or the dialogue. “He couldn’t follow the plot of a police interrogation or a disciplinary moment involving a babysitter, according to the court documents obtained by TMZ,” said Global News.

Although he declined to make an official comment, Pornhub vice-president Corey Price said in a statement to Global News that the website had a “closed captions category.”

Following the circulation of the case in the news, an article from Strigberger Brown Armstrong considered whether online pornography could fall within the scope of application of the Ontario Human Rights Code.

Under the Human Rights Code, RSO 1990, c H.19, every person, regardless of disability, should not be subjected to discrimination and should be treated equally with regard to the delivery of services. From this, a question may arise as to whether pornography, available to be streamed or downloaded on online platforms, is covered by the term “services.”

The firm mentioned the case of Peel Law Association v. Pieters, 2013 ONCA 396, in which the Court of Appeal for Ontario, citing Shaw v. Phipps, 2012 ONCA 155, laid out three elements by which an applicant may establish prima facie discrimination under the OHRC:

  1. That he or she is a member of a group protected by the Code;
  2. That he or she was subjected to adverse treatment; and
  3. That his or her gender, race, colour or ancestry was a factor in the alleged adverse treatment.

The case added that, once a prima facie case has been demonstrated by the applicant, it is now the burden of the respondent to justify the conduct or practice alleged to be discriminatory. “Once there is evidence to support a prima facie case, the respondent faces the tactical choice: explain or risk losing,” wrote Justice Russell Juriansz in the decision.

“Most businesses do not intend to discriminate against prospective customers,” stated the article by Strigberger Brown Armstrong. “However, the Code’s focus is on the effect of the discrimination. Intent does not matter.”

The firm therefore cautioned businesses to ensure that the services they delivered did not violate the right to be protected against discrimination based on disability, as enshrined in Ontario human rights legislation.

Suris’ suit against Pornhub is one of the many civil rights suits in which he’s involved. He’s also suing the Weather Channel, Fox News Network, CBS, Warner Bros./TMZ, Columbia University, Investor’s Business Daily and the parent company of the New York Post, said Global News.

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