In December 2012, the European Commission proposed a new directive on the accessibility of websites operated by organisations in the public sector. If passed, the Directive would establish new requirements in relation to how public sector bodies ensure that their websites are accessible to users with disabilities. The European Commission estimates that there are over 700,000 public sector websites in the EU, of which only one third are accessible to users with disabilities.
Determining what is ‘accessible’
One of the big issues with legislating on website accessibility is the need to have an objective set of criteria for determining what an accessible website looks like. Accessibility, by its nature, is a subjective issue, as accessibility problems will vary depending on an individual’s disabilities, skills and the device/browser software that he or she is using. This makes it difficult to have a law that sets out clearly what organisations have to do.
The UK Equality Act 2010 deals with this by using a set of objective criteria for determining discrimination (that apply regardless of the type of discrimination that is alleged to be taking place). In summary, an organisation will be deemed to be discriminating against an individual if that individual receives a poorer quality or standard of service as a consequence of his or her disability, and the organisation cannot show that the treatment was a proportionate means of achieving a legitimate aim. Whilst the Internet and websites are not mentioned in the Act itself, inaccessible websites are used as examples of prohibited behaviour in the accompanying codes of practice.
Translating the requirements of the Act into the specific steps an organisation should take in relation to its website has always been difficult. This is particularly challenging in the absence of any UK court rulings on the issue (the most high profile case to date involved the RNIB raising proceedings against the budget airline BMI Baby in January last year, but BMI Baby’s subsequent demise appears to have brought that action to an end).
To help organisations ensure that their websites are as accessible as possible, in December 2010 the British Standards Institute issued a British Standard (BS 8878 Web Accessibility: Code of Practice). BS 8878 is designed to give guidance and good practice recommendations to organisations that develop or commission the development of new websites (or other technologies that utilise or display web technology, such as mobile apps). This might include referencing recognised technical accessibility guidelines, and conducting user testing.
The intention behind BS 8878 is that, if an organisation follows the guidance, the website that it commissions should be accessible to as many users as possible. This, in turn, should help the organisation to provide evidence of the steps that it has taken to comply with its obligations under the Equality Act.
Background to the Directive
Website accessibility has featured in a number of digital initiatives launched by the Commission over the past ten years, including various action plans and targets to improve accessibility, particularly in the public sector. For example, Action 64 of the Commission’s Digital Agenda for Europe aimed to make sure that public sector websites are fully accessible by 2015. However, the Commission feels that those initiatives have not been successful and that legislation is now required.
Interestingly, the Commission’s primary justification for proposing the Directive is not to improve the accessibility of online public services to people with disabilities (albeit this is noted as a secondary benefit), but rather to address what it sees as barriers in the market for the provision of web development and web authoring tools within the EU. The Commission’s view is that different national laws and regulations in different member states, and an inconsistency in technical accessibility requirements in calls for tenders, are hindering the internal market for web development services.
The Directive is intended to sit alongside the grandly titled (but long delayed) European Accessibility Act (EAA) which will apply to the provision of goods and services by private sector organisations. The Commission states that it is currently preparing an impact assessment for the EAA, and expects to publish that in the near future (some three-and-a-half years after Commissioner Reding initially proposed such legislation). It is unclear whether the EAA will take the form of a regulation or a directive.
Who does it apply to?
The Directive will apply only to the public sector and covers the use of websites to provide 12 basic online services: income taxes; job search services; social security benefits; personal documents (such as passports and driving licences); car registration; application for building permission; declarations to the police; public libraries; certificates; enrolment in higher education; announcement of moving; and health related services.
Whilst the Directive applies only to a core range of online services, the Commission believes that there will be a ‘spill-over’ such that the Directive will have an immediate and positive effect on other websites in the public sector.
What does the Directive require?
At its core is a single two-part obligation:
Member States shall take the necessary measures to ensure that the websites concerned are made accessible:
(a) in a consistent and adequate way for users’ perception, operation and understanding, including adaptability of content presentation and interaction, when necessary, providing an accessible electronic alternative;
(b) in a way which facilitates interoperability with a variety of user agents and assistive technologies at Union and international level.
To provide the certainty and consistency that the Commission feels is creating market barriers, the Directive goes on to state that a website is ‘presumed’ to meet the accessibility requirements set down by the Directive where it complies with a number of external standards.
These are:
- initially, the recently approved international standard on website accessibility ISO/IEC 40500, which is actually a republication of version 2.0 of the long-established and recognised web content accessibility guidelines (WCAG) from the World Wide Web Consortium (W3C), to Level AA of the three stage conformance criteria;
- any European standard on website accessibility, which may include any standard under the ongoing Commission’s Mandate M/376 project (which references WCAG Level AA conformance for the purposes of web content); and
- ultimately the harmonised standards for accessibility drawn up and approved by the EU institutions, which, in turn, will be based on the European standard arising out of M/376.
Procurement law changes
As part of its ongoing reform of public procurement rules, the Commission is also proposing to strengthen the accessibility provisions that apply to the procurement of goods and services by public authorities. The draft public procurement directive published in December 2011 states that:
‘for all procurement the subject of which is intended for use by persons, […] technical specifications shall […], be drawn up so as to take into account accessibility criteria for people with disabilities or design for all users.’
The draft directive goes on to say that ‘where mandatory accessibility standards are adopted by a legislative act of the Union, technical specifications shall, as far as accessibility criteria are concerned, be defined by reference thereto.’ In practice, this means that procurement laws will mandate public sector organisations to set requirements in relation to accessibility by reference only to ISO/IEC 40500, the new European Standard, or any eventual harmonised standard.
A flawed approach
The Directive includes three presumptions of compliance. As is explained above, each of these presumptions is (directly or indirectly) based on compliance with Level AA conformance under WCAG.
Disappointingly, the presumption of ‘accessibility’ is therefore determined only on compliance with tick box criteria rather than, for example, user testing or a wider practical assessment of usability and accessibility, as recommended by the British Standard BS 8878.
Usability expert Jonathan Hassell, formerly head of accessibility at the BBC and technical author of BS 8878, raises a number of criticisms of this approach:
- First, the Directive does not provide any guidance on how large public sector organisations can embed accessible design across their organisation.
- Secondly, technology is constantly changing and new technologies are constantly being developed. WCAG 1.0 quickly became outdated as new technologies emerged. Whilst WCAG 2.0 is more flexible than the original guidelines, it is questionable whether accessibility legislation should reference static guidelines which may quickly become outdated. Can WCAG keep pace with the increasing use of rich media and mobile? That remains to be seen.
- Thirdly, the Directive does not contain any concepts of reasonableness and proportionality. That is, it does not allow for organisations to explain why it is reasonable and appropriate not to comply with any of the specific requirements in WCAG 2.0 AA. For example, the Directive would not permit an organisation to make use of new technologies (which may provide users with innovative new services) if the technologies used at that staged contained inherent accessibility issues.
This is not a hypothetical situation. A number of the first mobile apps to be launched contained accessibility issues, largely as a result of the limitations of the development platform, development techniques, or the hardware involved. These apps either enabled users to access existing online services in new ways, or to access new services not previously made available to users. As the technology matures, these accessibility issues are being resolved. However, had the Directive been in place at the time, then an organisation may have been reluctant to launch that app unless it was fully accessible to all users at the date of launch, hampering innovation and the development of the mobile market.
Of more concern, referencing WCAG may not actually help users with disabilities, and may also give organisations false reassurance that they are complying with equality laws. Compliance with technical accessibility standards such as WCAG may not in itself always lead to an accessible website, and certainly not a usable website.
The legal obligation in the UK
In the UK, the Equality Act 2010 is based on a test of actual discrimination in relation to the provision of goods and services. In order to establish a breach of the Equality Act, you need to look at the actual impact and wider service delivery.
Whilst important, the web is just one way of providing a service. So when assessing for the purposes of the Equality Act whether, for example, a direct banking service is accessible, it is reasonable for the bank to look at all the channels that it uses. If a customer with disabilities is unable to access a particular service feature online (for example, because the security measures used are inaccessible to that user), but the customer can access that same service by telephone (and there is no difference in the standard of service, or terms of which the service is being provided), then the inaccessible website may not in itself cause the bank to be in breach of its obligations under the Equality Act.
Conversely, a website may comply with all of the requirements set out in WCAG (and therefore comply with the Directive) and yet still have accessibility problems that cannot be tested against technical criteria such as WCAG but would be identified through user testing (as advocated by BS 8878). As the Equality Act looks at the availability of the service itself, it is possible that the provision of such a website (with no accessible alternative) would cause the organisation to be in breach of its obligations under the Equality Act.
Tensions with national laws
The Directive does not explain how it will interact with other legislation at national level, and how these tensions will be resolved.
This means that a website may still be inaccessible and have the effect of discriminating (in terms of the Equality Act), yet comply with the Directive and the requirements of the revised public procurement directive.
On the other hand, a website may not comply with the Directive, yet analysing wider service provision (in terms of the test for discrimination under the Equality Act) the organisation may conclude that there is no discrimination against a disabled user. This means that an organisation could be in breach of the rules under the Directive (because its website does not comply with the specific requirements of WCAG Level AA), yet an individual making a complaint could be in the position of not actually suffering any discrimination.
This approach means that organisations operating websites will be left in the unsatisfactory position of not knowing what steps are required to show that they have complied with the relevant laws.
Next steps
The Commission is now engaging with governments, the industry and organisations (including disability bodies) on the adoption and implementation of the Directive. It is envisaged that Member States will be obliged to transpose the obligation into national law by the end of June 2014, with the law coming into force by 31 December 2015 at the latest. This would give affected organisations 18 months to implement the necessary amendments. It is not clear whether the Commission is prepared to address the concerns that have been raised on relying solely on WCAG-based accessibility requirements.
Whilst the transitional arrangements are not yet clear, nor how the Directive will interact with existing national laws, public sector bodies looking to update their websites and online services over the coming year should bear in mind the likely new laws and accessibility requirements when developing their technical requirements specifications.
Martin Sloan is an associate in the IP, Technology and Outsourcing group at Brodies LLP: martin.sloan@brodies.com. Twitter: http://twitter.com/lawyer_martin
More on Mandate 376
As part of the Commission’s approach to improving website accessibility, it issued a mandate (Mandate 376) tasking the European Standards Organisations, CEN, CENELEC and ETSI, with developing accessibility requirements for use in public procurement of ICT (http://www.mandate376.eu/).
Under the Mandate, a European standard will be developed which will specify accessibility requirements for ICT products and services, including web content and authoring tools. The Commission’s intention is that this standard should then be referenced by public bodies when procuring ICT goods and services, providing common accessibility requirements across the EU. This should, in theory, help to overcome market barriers that the Commission views as inhibiting cross border trade. The chapter dealing with web content references compliance with WCAG as the appropriate technical standard. It is likely that the output of the Mandate will be referenced in the European Accessibility Act.
At the date of writing, the timetable envisages that the resulting standard will be published by the end of February 2014.
