Dissecting the WAD, part 3

In part 1 of this series about the WAD, we covered the title and heading sections. In part 2 of the series we continued by looking at the first 20 recitals. In this third part we continue going through the introductory recitals which give the background to the directive. The official text is available here.

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(21) This Directive is without prejudice to Directive 2014/24/EU of the European Parliament and of the Council (6) and in particular Article 42 thereof, and Directive 2014/25/EU of the European Parliament and of the Council (7) and in particular Article 60 thereof, which require that the technical specifications for all procurements which are intended for use by natural persons, whether the general public or staff of the contracting authority, shall, except in duly justified cases, be drawn up so as to take into account accessibility criteria for persons with disabilities or design for all users.

Nothing in this directive negates the requirements of previous directives which requires that all procurements must take into account the needs of persons with disabilities.

(22) Given the lack of automated or efficient and easy-to-implement means to make some types of published content accessible, and in order to limit the scope of this Directive to content of websites and mobile applications effectively under the control of public sector bodies, this Directive provides for the temporary or permanent exclusion from its scope of some types of content of websites or mobile applications. Those exclusions should be reconsidered in the context of the review of this Directive, in the light of future technological advances.

Some content types can be excluded from this directive if it is proven that there is no efficient means to implement the directive for them. As technology advances the need for these exclusions will be checked ina future review of the directive.

(23) The right of persons with disabilities and of the elderly to participate and be integrated in the social and cultural life of the Union is inextricably linked to the provision of accessible audiovisual media services. However, that right may be better developed in the context of Union sector-specific legislation or legislation focusing on accessibility that also applies to private broadcasters in order to guarantee conditions of fair competition without prejudice to the public interest role performed by the audiovisual media services. This Directive should consequently not apply to the websites and mobile applications of public service broadcasters.

The directive does not apply to websites and mobile applications of public broadcasters. This is to maintain a level playing field between public and private broadcasters in the domain of audiovisual media. The rights of persons with disabilities in this context will be developed within other legislation.

(24) Nothing in this Directive is intended to restrict the freedom of expression and the freedom and pluralism of the media as they are guaranteed in the Union and in the Member States, in particular under Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

The directive does not restrict freedom of expression or the freedom of the media.

(25) Some non-governmental organisations (NGOs), which are voluntary self-governing bodies established to pursue essentially non-profit making objectives, provide services that are not essential to the public, such as services that are not directly mandated by State, regional or local authorities, or services that do not specifically address the needs of persons with disabilities in particular, and could fall within the scope of this Directive. In order to avoid imposing a disproportionate burden on such NGOs, this Directive should not apply to them.

The directive does not apply to NGOs providing services not essential to the public (ie not directly requested by governmental authorities) or services not specifically addressing the needs of persons with disabilities.

(26) Office file formats should be understood as documents that are not intended primarily for use on the web and that are included in web pages, such as Adobe Portable Document Format (PDF), Microsoft Office documents or their (open source) equivalents.

Office file formats are documents that are intended to be used offline, but can be included in web pages, such as Word documents or PDFs.

(27) Live time-based media that are kept online or republished after the live broadcast should be considered as pre-recorded time-based media without undue delay from the date of the initial broadcast or republishing of the time-based media, not exceeding the time strictly necessary to make time-based media accessible with priority being given to essential information relating to the health, welfare and safety of the public. That necessary period of time should in principle be no longer than 14 days. In justified cases, such as when it is impossible to procure the relevant services in due time, that period might exceptionally be extended to the shortest time necessary to make the content accessible.

Live recordings must be made accessible within 14 days of their availability online, after which time they are considered to be pre-recorded and as such subject to the accessibility requirements of this directive. Justified exceptions are allowed, but only for a very limited amount of time.

(28) This Directive, while encouraging public sector bodies to make all content accessible, is not intended to limit the content which public sector bodies place on their websites or in their mobile applications to accessible content alone. Whenever non-accessible content is added, public sector bodies should, to the extent reasonably possible, add accessible alternatives on their websites or in their mobile applications.

Content made available online by public sector bodies should not be limited only to accessible content. Rather accessible alternatives to non-accessible content should be added to the extent that this is reasonably possible.

(29) When maps are intended for navigational use, as distinct from geographical description, accessible information may be needed in order to help persons who cannot use visual information or complex navigation functionalities properly, for instance to locate premises or areas where services are provided. An accessible alternative should therefore be provided, such as postal addresses and nearby public transport stops, or the names of places or regions which are often already available for the public sector body in a form that is simple and readable for most users.

Maps used for navigational purposes, for example to find an office building, must provide accessible alternatives to the map, such as postal addresses or nearby pubic transport stops. This form should be simple and readable by most users.

(30) Embedded content, such as embedded images or videos, should be covered by this Directive. However, websites and mobile applications are sometimes created into which additional content may be subsequently incorporated, for example an email program, a blog, an article that allows users to add comments, or applications supporting user-contributed content. Another example would be a page, such as a portal or news site, composed of content aggregated from multiple contributors, or sites that automatically insert content from other sources over time, such as when advertisements are inserted dynamically. Such third-party content, provided that it is neither funded nor developed by the public sector body concerned nor under its control, should be excluded from the scope of this Directive. Such content should, in principle, not be used if it hinders or decreases the functionality of the public service offered on the website or mobile application concerned. Where the purpose of content of websites or mobile applications of public sector bodies is to hold consultations or to organise forum discussions, that content cannot be considered as third-party content and should therefore be accessible, except in the case of user-contributed content which is not under the control of the public sector body concerned.

Third party content, such as embedded images and videos or user contributed content such as comments on web pages, is excluded from the scope of this directive as long as it is not funded, developed or controlled by the public sector body. However such content should decrease or hinder the functionality of the service being offered. Further, if such content is used for consultations or discussions, it must be accessible according to the directive.

(31) Some accessibility requirements for websites or mobile applications should still be complied with as regards the metadata linked to the reproduction of items in heritage collections.

Metadata needed for the reproduction of items in heritage collections must still comply with the accessibility requirements.

(32) This Directive should not require Member States to make the content of archived websites or mobile applications accessible if it is no longer updated or edited and if it is not needed in order to carry out administrative processes. For the purposes of this Directive, purely technical maintenance should not be considered to constitute updating or editing of a website or mobile application.

Content that is no longer updated and is not needed for administrative processes does not need to be made accessible. This includes updates that are purely technical maintenance in nature.

Continue to the fourth part of this series.

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