A plain English guide to the EU public sector accessibility directive

Earlier this year I wrote about the EU’s superb directive on the accessibility of public sector websites and apps.

On 26 October the European Parliament formally approved the Directive, and 2 December the full legal text was published in the Official Journal of the European Union.

That final technical step means the Directive is now on the books as the law of the land.

Better web accessibility in public services across Europe is ready to go.

While I hate to merely regurgitate what is in the legal text of any given Directive, I also know how much you all love reading legal texts. I am also endlessly amused by the irony of government directives on accessibility being written in language that is anything but accessible. This Directive, sadly, continues that tradition.

What follows here, then, is a plain English explanation of what the Directive sets forth to improve public sector accessibility across Europe.

What is the definition of “public sector web sites and apps?”

There is always a danger of splitting hairs over what exactly qualifies as a “public sector web site and app”. My concern was that arms’ length organisations, quangos, and special commissions – groups which are entirely government-funded but frankly pretend they are not – would exempt themselves from accessibility requirements.

For the purposes of this accessibility directive, a public sector body means “the State, regional or local authorities, bodies governed by public law, or associations formed by one or more such authorities or one or more such bodies governed by public law, if those associations are established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character.”

That being said, the Directive exempts NGOs, which are “voluntary self-governing bodies” providing services that are “not essential to the public, such as services that are not directly mandated by State, regional or local authorities…”

This sweeps arms-length organisations and quangos into the scope of the Directive.

Clever.

Accessibility standards and “presumption of conformity”

The Directive requires public sector web sites to “ensure that public sector bodies take the necessary measures to make their websites and mobile applications more accessible by making them perceivable, operable, understandable and robust.”

This is to be achieved by the requirements set forth in clauses 9, 10, and 11 of European standard EN 301 549 V1.1.2 (2015-14).

Until a specific harmonised standard is specified, European standard EN 301 549 V1.1.2 (2015-04) should be considered the minimum principle.

The concept of the “presumption of conformity” means that public sector web sites and apps do not need to be rebuilt from scratch to conform with the Directive, nor does a new set of rules need to be retrofitted onto the back.

A public sector web site or app which has already been built to, and meets the requirements of, a recognised accessibility standard will be considered to be in conformance with this Directive.

The Commission is allowed to amend the Directive in future to note a new minimal standard, such as any update to EN 301 549 or to an alternative European standard which might replace it.

The Directive does not specify any specific technology for use in any specific application.

Harmonisation

The Directive sets forward a minimum base standard for compliance, monitoring, and evaluation across Europe. Member states are permitted to introduce additional requirements for public sector accessibility on a national basis as they see fit.

Exemptions

There are several exemptions within the Directive. These include:

  1. Office documents, such as spreadsheets and PDFs, published before 23 September 2018;
  2. Pre-recorded live video posted before 23 September 2020;
  3. Live video (for example, a live press conference);
  4. Online maps and mapping services, as long as there is an accessible version providing essential information for navigational purposes;
  5. Third-party content which the public sector body has no control over;
  6. Reproductions of items in heritage collections which are too fragile or expensive to digitise;
  7. The contents of extranets and intranets published before 23 September 2019;
  8. The content of web sites and apps which are considered archival, meaning they are not needed for active administrative purposes and are no longer updated or edited;
  9. The web sites of schools, kindergartens, and nurseries, except for content pertaining to administrative functions.

Disproportionate burden

This is a remarkably pragmatic piece of legislation. Within certain situations, the Directive acknowledges the concept of a compliance burden so disproportionate that it would “jeopardise the body’s capacity to…fulfil its purpose”. (If only we’d had such pragmatism over VATMOSS.)

In deciding whether accessibility compliance on any given web site would impose a disproportionate burden, the public sector body must consider its size, resources, and function; the estimated costs and benefits for the public sector body in terms of the web site audience with disabilities; and the frequency of use and lifespan of the web site in question.

If accessibility compliance for a web site or app is deemed to carry a disproportionate burden, the public sector body must explain this, providing a full explanation, within the web site accessibility statement.

Accessibility statements

Web sites and apps which fall under the Directive must have a detailed, comprehensive, and clear accessibility statement. The statement must describe compliance efforts specific to the Directive; it should not be a self-serving declaration of the “we passed it through a checker” type.

The accessibility statement must also include:

  1. an explanation of any parts of the site which are not accessible, which should include links to any possible alternatives;
  2. a description and link to a feedback mechanism for accessibility concerns; and
  3. a link to the defined enforcement procedure being established under the Directive where people can raise a formal complaint if they feel their feedback has not been respected.

The Commission plans to draft a “model accessibility statement” to use an example. Keep your eyes peeled for that one.

The accessibility statement must be accessible. This should be obvious but sadly it has to be said.

Monitoring and reporting

The Directive requires member states to periodically monitor affected sites for compliance. To achieve this, the Commission will set forth a methodology (in other words, a process) for member states to use to evaluate compliance. This methodology must be on the books by 23 December 2018. The Commission is keen on this methodology being uniform across all member states in order to provide an accurate picture of compliance across the board.

The monitoring methodology must describe:

  1. How frequently web sites and apps will be evaluated;
  2. What will be tested, and how;
  3. What mobile content will be tested, inclusive of updated versions of apps;
  4. How accessibility conformance will be demonstrated, directly referencing technical specifications and standards;
  5. How areas for improvement will be identified and communicated to public sector bodies; and
  6. How regular automated and manual testing will be used in conjunction with periodic evaluations to ensure compliance outside formal audits.

From 2021, member states must submit a report to the EC every three years describing their monitoring, compliance, and enforcement efforts.

Enforcement

Does this Directive have teeth? That depends on the member state. Under the Directive, member states must select a body responsible for enforcement, and charge them with creating an “adequate and effective” enforcement procedure. This could include the possibility of submitting complaints to an ombudsman, the selected enforcement body, or any other national authority competent to deal with the complaint.

Remember, this is Europe. The Directive calls for setting up procedures “in order to avoid systematic recourse to court proceedings” in the first place. Enforcement will be a process of constructive evaluations, not adversarial lawsuits.

Review

The Commission will carry out a review of the Directive’s progress by 2022. This will include a look at monitoring and evaluation efforts; an examination of enforcement procedures carried out; and a review of technical advances we may see between now and then which could change the scope of the Directive.

When do these rules go into effect?

The accessibility directive is staggered across four deadlines. These deadlines give member states a lead time of nearly five years to get their acts together.

First, member states must implement the Directive into their national legislation by 23 September 2018.

Second, member states must apply the Directive to the web sites of public sector bodies created after 23 September 2018 by 23 September 2019.

Third, member states must apply the Directive to the web sites of public sector bodies created before 23 September 2018 by 23 September 2020.

Fourth, member states must apply the Directive to mobile apps of public sector bodies from 23 June 2021.

Any questions?

About the author
Heather Burns is a digital law specialist in Glasgow, Scotland. She researches, writes, publishes, consults, and speaks extensively on internet laws and policies which affect the crafts of web design and development. She has been designing and developing web sites since 1997 and has been a professional web site designer since 2007. She holds a postgraduate certification in internet law and policy from the University of Strathclyde. Learn about hiring Heather to write, speak, or consult.