Dissecting the WAD, part 6

This is a 10 parts series examining the WAD. In this 6th part of the series we start going through the articles of the directive, covering articles one to six. The previous parts of this series are:

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The complete official text of the WAD is available here.

Article 1
Subject matter and scope
1.   In order to improve the functioning of the internal market, this Directive aims to approximate the laws, regulations and administrative provisions of the Member States relating to the accessibility requirements of the websites and mobile applications of public sector bodies, thereby enabling those websites and mobile applications to be more accessible to users, in particular to persons with disabilities.

This directive defines the regulations that will apply to public sector websites, with the aim of making them accessible to all persons, including those with disabilities.

2.   This Directive lays down the rules requiring Member States to ensure that websites, independently of the device used for access thereto, and mobile applications of public sector bodies meet the accessibility requirements set out in Article 4.

The requirements for making public sector websites more accessible are defined in article 4 of this directive.

3. This Directive does not apply to the following websites and mobile applications:
(a) websites and mobile applications of public service broadcasters and their subsidiaries, and of other bodies or their subsidiaries fulfilling a public service broadcasting remit;
(b) websites and mobile applications of NGOs that do not provide services that are essential to the public, or services that specifically address the needs of, or are meant for, persons with disabilities.

This directive does not apply to public service broadcasters, nor to NGOs unless they are providing services essential to the public or services specifically for persons with disabilities.

4. This Directive does not apply to the following content of websites and mobile applications:
(a) office file formats published before 23 September 2018, unless such content is needed for active administrative processes relating to the tasks performed by the public sector body concerned;
(b) pre-recorded time-based media published before 23 September 2020;
(c) live time-based media;
(d) online maps and mapping services, as long as essential information is provided in an accessible digital manner for maps intended for navigational use;
(e) third-party content that is neither funded nor developed by, nor under the control of, the public sector body concerned;
(f) reproductions of items in heritage collections that cannot be made fully accessible because of either:
(i) the incompatibility of accessibility requirements with either the preservation of the item concerned or the authenticity of the reproduction (e.g. contrast); or
(ii) the unavailability of automated and cost-efficient solutions that would easily extract the text of manuscripts or other items in heritage collections and transform it into content compatible with the accessibility requirements;
(g) content of extranets and intranets, that is to say, websites that are only available for a closed group of people and not to the general public as such, published before 23 September 2019, until such websites undergo a substantial revision;
(h) content of websites and mobile applications qualifying as archives, meaning that they only contain content that is neither needed for active administrative processes nor updated or edited after 23 September 2019.

A number of content types are excluded from this directive. They include office documents (eg Word, PDF) published before 23rd September 2018, video and audio recordings published before 23rd September 2020, live video and audio, maps (eg Google Maps) as long essential info is provided in an alternate format, content not under the control of the public sector body, reproductions of heritage collections (eg online Museums) for which no cost effective method exists to make it accessible, internal websites (eg intranets, extranets) aimed at a limited set of users, published before 23rd September 2019, archived content not touched since 23rd September 2019.

5. Member States may exclude from the application of this Directive websites and mobile applications of schools, kindergartens or nurseries, except for the content thereof relating to essential online administrative functions.

Schools, kindergartens and nurseries are excluded, except for content that is essential for administrative functions.

Article 2
Minimum harmonisation
Member States may maintain or introduce measures in conformity with Union law which go beyond the minimum requirements for accessibility of websites and mobile applications established by this Directive.

These requirements are considered to be a minimum and member states may introduce requirements that go beyond the requirements of this directive.

Article 3
Definitions
For the purposes of this Directive, the following definitions apply:
(1) ‘public sector body’ means the State, regional or local authorities, bodies governed by public law, as defined in point (4) of Article 2(1) of Directive 2014/24/EU, 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;
(2) ‘mobile application’ means application software designed and developed, by or on behalf of public sector bodies, for use by the general public on mobile devices such as smartphones and tablets. It does not include the software that controls those devices (mobile operating systems) or hardware;
(3) ‘standard’ means a standard as defined in point (1) of Article 2 of Regulation (EU) No 1025/2012;
(4) ‘European standard’ means a European standard as defined in point (1)(b) of Article 2 of Regulation (EU) No 1025/2012;
(5) ‘harmonised standard’ means a harmonised standard as defined in point (1)(c) of Article 2 of Regulation (EU) No 1025/2012;
(6) ‘time-based media’ means media of the following types: audio-only, video-only, audio-video, audio and/or video combined with interaction;
(7) ‘items in heritage collections’ means privately or publicly owned goods presenting an historical, artistic, archaeological, aesthetic, scientific or technical interest and that are part of collections preserved by cultural institutions such as libraries, archives and museums;
(8) ‘measurement data’ means the quantified results of the monitoring activity carried out in order to verify the compliance of the websites and mobile applications of public sector bodies with the accessibility requirements set out in Article 4. It covers both quantitative information about the sample of websites and mobile applications tested (number of websites and applications with, potentially, the number of visitors or users, etc.) and quantitative information about the level of accessibility.

A set of legal definitions of terms, with references to regulations as appropriate, that are used in this directive.

Article 4
Requirements for the accessibility of websites and mobile applications
Member States shall 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.

Basically saying that member states must ensure that public sector websites must be accessible, meaning perceivable, operable, understandable and robust.

Article 5
Disproportionate burden
1. Member States shall ensure that public sector bodies apply the accessibility requirements set out in Article 4 to the extent that those requirements do not impose a disproportionate burden on the public sector bodies for the purposes of that Article.
2. In order to assess the extent to which compliance with the accessibility requirements set out in Article 4 imposes a disproportionate burden, Member States shall ensure that the public sector body concerned takes account of relevant circumstances, including the following:
(a) the size, resources and nature of the public sector body concerned; and
(b) the estimated costs and benefits for the public sector body concerned in relation to the estimated benefits for persons with disabilities, taking into account the frequency and duration of use of the specific website or mobile application.
3. Without prejudice to paragraph 1 of this Article, the public sector body concerned shall perform the initial assessment of the extent to which compliance with the accessibility requirements set out in Article 4 imposes a disproportionate burden.
4. Where a public sector body avails itself of the derogation provided for in paragraph 1 of this Article for a specific website or mobile application after conducting an assessment as referred to in paragraph 2 of this Article, it shall explain, in the accessibility statement referred to in Article 7, the parts of the accessibility requirements that could not be complied with and shall, where appropriate, provide accessible alternatives.

This article explains that following this directive should not impose a disproportionate burden on public sector bodies. It explains how to member states should help avoid such a burden and how it should be measured. If this article is used in order to not make content accessible it needs to be described in the accessibility statement of the website concerned.

Article 6
Presumption of conformity with the accessibility requirements
1.Content of websites and mobile applications that meets harmonised standards or parts thereof the references to which have been published by the Commission in the Official Journal of the European Union in accordance with Regulation (EU) No 1025/2012 shall be presumed to be in conformity with the accessibility requirements set out in Article 4 that are covered by those standards or by parts thereof.
2. Where no references to the harmonised standards referred to in paragraph 1 of this Article have been published, content of mobile applications that meets the technical specifications or parts thereof shall be presumed to be in conformity with the accessibility requirements set out in Article 4 that are covered by those technical specifications or by parts thereof.
The Commission shall adopt implementing acts establishing the technical specifications referred to in the first subparagraph of this paragraph. Those technical specifications shall meet the accessibility requirements set out in Article 4 and shall ensure at least a level of accessibility equivalent to that ensured by European standard EN 301 549 V1.1.2 (2015-04).
The implementing acts referred to in the second subparagraph of this paragraph shall be adopted in accordance with the examination procedure referred to in Article 11(3). The first such implementing act shall be adopted, where no references to the harmonised standards referred to in paragraph 1 of this Article have been published, by 23 December 2018.
3. Where no references to the harmonised standards referred to in paragraph 1 of this Article have been published, content of websites that fulfils the relevant requirements of European standard EN 301 549 V1.1.2 (2015-04) or parts thereof shall be presumed to be in conformity with the accessibility requirements set out in Article 4 that are covered by those relevant requirements or by parts thereof.
4. Where no references to the harmonised standards referred to in paragraph 1 of this Article have been published, and in the absence of the technical specifications referred to in paragraph 2 of this Article, content of mobile applications that fulfils the relevant requirements of European standard EN 301 549 V1.1.2 (2015-04) or parts thereof shall be presumed to be in conformity with the accessibility requirements set out in Article 4 that are covered by those relevant requirements or by parts thereof.
5. The Commission is empowered to adopt delegated acts in accordance with Article 10 in order to amend paragraph 3 of this Article by updating the reference to European standard EN 301 549 V1.1.2 (2015-04) so as to make reference to a more recent version of that standard, or to a European standard replacing it, where that version or standard meets the accessibility requirements set out in Article 4 and ensures at least a level of accessibility equivalent to that ensured by European standard EN 301 549 V1.1.2 (2015-04).

This article basically explains the conformance to the directive is presumed if a website or mobile application meets the requirements of the relevant latest version of the European standard. The version when the directive was published was: EN 301 549 V1.1.2 (2015-04). The Commission is allowed to update the directive, to point to a new version of the harmonised standard, using an implementing decision referenced in the official journal of the European Union. Side note: The current latest version is EN 301 549 V2.1.2 (2018-08). A further revision is expected to be published and referenced in 2021.

Continue to the seventh part of this series.

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