European accessibility law What’s ahead in 2016?

Accessibility professionals can look forward to the passage of two European laws pertaining to web accessibility: the public sector accessibility directive and the European Accessibility Act. Both of these laws will bring much-needed clarity to the drive towards better accessibility in Europe. There are, however, a number of issues which will need to be resolved before the laws can be allowed to achieve their full potential.

In our last installment we looked at Section 508, the year 2000 law regulating the accessibility of U.S. Federal government web sites. This month we will look at European initiatives aimed at improving web accessibility in government web sites as well as in consumer products and services.

While Europe’s experience has been refreshingly free of the dramas which have characterized the Section 508 process, the drive towards a European public sector accessibility directive does have one thing in common with its American counterpart. It too has been characterized by years of good intentions, lofty statements, and “action plans” which have not been met by the tangible results that the accessibility community expects. There is, however, some progress.

The lack of a Europe-wide law on public sector accessibility does not equal a lack of European accessibility laws. Many European countries have laws and regulations concerning public sector accessibility which, by and large, encourage conformance with WCAG 2.0 guidelines. However, while some countries have excellent legal frameworks for web accessibility, other countries do not.

Even when European countries have strong web accessibility laws in place, proper web accessibility is seldom achieved. We have all seen public sector web sites which have “accessibility compliant!” buttons in their footers despite having graphical navigation, Flash introductions, and two layers of modal overlays. Public sector web administrators need to be encouraged to move from a “tick box” view of accessibility to adopting a continuous process of involvement. A European-wide web accessibility directive, grounded in the WCAG 2.0 principles, may well be the stick that is needed.

The European accessibility directive

The EU’s first action on public sector web accessibility took the form of a resolution (a statement rather than a binding law) issued in 2002. This was a typical digital utopian document which spoke more about lofty goals for society (and achieving internal “action plans”) than the more mundane realities of code and digital publishing.

In 2012 the European Commission published the first draft of its “Proposal for a Directive of the European Parliament and of the Council on the accessibility of public sector bodies’ websites”. The accompanying impact assessment (.pdf, 439kb) is worth reading.

The draft Directive has slowly but surely moved through committee processes, draft versions, and edits throughout the Irish (.pdf, 168kb), Greek (.pdf, 211kb), Italian (.pdf, 229kb, and Latvian (.pdf, 237kb) Presidencies of the EU. The latest draft of the European accessibility Directive (Luxembourg Presidency) was released in October 2015 (.pdf, 201kb).

One worrying area of note is that the 2012 draft and accompanying impact assessment were drawn up based on data received at public consultations held in 2007 and 2008, and from public data sets from 2009. This issue of ageing data being used to inform legislation is a sadly common problem in digital law. Indeed, at the time the questions were asked, adoption of WCAG 2.0 within member states was still minimal and WCAG 1.0 still dominated. Where the formation of digital laws is concerned, user data from 2007 is essentially useless, but governments are reluctant to repeat the consultative exercise as it would draw attention to the fact that they have not passed any law in the interim. Civil society and activist groups are obliged to fill the information gap through consultation with governments, as they have done here with mixed results.

Harmonization

The latest draft of the Directive includes an article on harmonization, a nod to the EU’s all-consuming aim of eliminating cross-border conflicts to create a digital single market. The creation of a European-wide standard is seen as “a necessary condition to put an end to this fragmentation and lack of confidence in the web-accessibility market.”

The article on harmonization states that:

Member States may maintain or introduce measures in conformity with Union law which go beyond the minimum requirements for web accessibility established by this Directive.

This will include the option to introduce accessibility laws pertaining to apps. Curiously, leaving the accessibility of apps to individual member states, rather than imposed as part of the Directive, seems to go against the spirit of harmonization.

Monitoring, reporting, and enforcement

The draft Directive continues the European tradition of viewing enforcement as the result of a process of periodic monitoring and reporting. There is no inclination within this Directive, or within the EU in general, to move towards a U.S. style system of adversarial litigation as a means of enforcing accessibility regulations. The European Disability Forum is opposed to this “light touch” proposal, saying “without a robust enforcement mechanism and a dedicated body to oversee this, the Directive would fail to achieve the desired outcome.”

Monitoring for compliance with the Directive will fall to individual countries:

Member States shall periodically monitor the compliance of public sector bodies’ websites with the requirements for web accessibility.

Member states, in turn, would be obliged to report on the general progress of the law every few years to the EU. For the Directive to have any chance of success, this exercise would need to be taken seriously and carried out faithfully every few years. A key point of contention against Section 508 is that the U.S. Department of Justice’s monitoring obligations are rarely fulfilled.

Exemptions

While American concerns over Section 508 have dealt with the speed and process of the reform, European concerns over the draft EU accessibility Directive are focused on the actual text of the law. It has generated substantial controversy within the accessibility community because of its proposed exemptions. These proposals have caused the European Disability Forum to state that “every exclusion in the scope ultimately excludes persons with disabilities.” The European Blind Union has been even more furious in its criticism, calling the draft “a disgrace” and accusing “EU governments {of} actively emptying the Directive of its meaningful content.”

A look at the proposed exemptions, and their implications for persons with disabilities, shows that their anger has merit.

“Empty of meaningful content”

The largest and most obvious problem is that like so many other digital laws, the draft text refers to “web sites.” What about apps? In an earlier draft of the Directive, apps were included within its scope, but they were later removed. Third-party content incorporated within public sector web sites has also been exempted. This creates a law ostensibly about public sector digital accessibility which, in practice, applies only to desktop web sites.

There is a proposed exemption within the draft law for “websites that are no longer updated or edited after the date defined in Article 10 paragraph 1” (e.g. after the date the law comes into effect.) In other words, older and archival web sites would not need to be revisited and brought up to accessibility compliance. In times of austerity, this can be seen as a realistic means of concentrating resources. However, exemptions like this send out the message that it is okay to carry on with poor and inaccessible web practices until a law comes into effect, at which point the slate will be wiped clean. With the draft law now entering its fourth year of discussion, and any possible enactment at least two or three years away, it would effectively exempt much of the public web that exists today.

(A similar exemption proposed in an earlier draft, but removed from the latest version, would have exempted public sector agencies whose web sites received a small number of hits. This would have created the odd prospect of organisations self-certifying their analytics to a central authority to get out of compliance.)

Likewise, intranets and extranets are excluded from the current draft of the Directive. This is remarkably shortsighted. Intranets and extranets are included within the comparable U.S. Section 508 law. There is little point in making a fully accessible public web site for a government agency if its own employees cannot use their intranets. After all, if all European countries had satisfactory accessibility laws pertaining to intranets and extranets, the accessibility Directive would not be necessary.

Office file formats

The most worrying aspect of the draft Directive is the proposal to exempt certain documents from compliance. As of October 2015’s draft, this is defined as:

office file formats not intended primarily or mainly for use on the web (PDF, DOC, RTF, XLS, PPT, etc.)

which are published on the web before the law’s implementation.

There are two problems with this. First, it would restrict a public sector accessibility law to the information contained in HTML and PHP output, but not to the deeper information in the documents contained within those pages. That would ironically prevent some users from reading the draft of the accessibility law itself. An Irish report into improving the accessibility of public sector web sites across Europe, prepared specifically to inform the creation of the Directive, found that “the most striking accessibility barriers relate to documents, forms and multimedia.” In light of that, exempting those most striking barriers from compliance is frankly bizarre.

The second problem is that office file formats are badly misused by public sector organisations. Across the web, PDFs and Office DOC/DOCX formats are used as an everyday means of presenting basic information rather than an occasional option for complex formatting. This is lazy web practice which cannot be curbed by legislation alone.

Let us use just one example by looking at the web site of the UK Interception of Communications Commissioner (IOCCO), the public surveillance watchdog. Nearly every resource on this web site, whether it is a news announcement, a press release, or a quarterly report, is a .pdf presented with no information about file format or size. The web site is essentially a repository for PDFs. Should information as critical as an investigation into police misuse of surveillance powers be exempt from accessibility compliance based solely on file format? (What’s worse, as an independent Crown office, the IOCCO could conceivably claim not to be a public sector body at all, thereby exempting themselves from the accessibility law altogether.)

Office file format exemptions would not only reward poor web practice, but would actively encourage it as a workaround to get out of accessibility compliance. This section of the Directive must be revisited.

When will the Directive come into effect?

The original proposal, dated December 2012, called for the law to come into effect by June 2014 for implementation on 31 December 2015. As of this writing, just days away from that “deadline”, the law is nowhere near coming into effect or being implemented. No target date was set in the October 2015 communique (.pdf, 201kb). The June 2015 progress report (.pdf, 237kb) noted that:

It has been clarified that for the purpose of the review of the Directive, Member States shall report to the Commission. The report should be issued 54 months after the entry into force of the Directive. The proposed date is linked to the dates of application proposed in Article 10 and to the date of the review in Article 11.

In other words, if this law were to pass in 2016, the earliest review of its success or failure would not come until late 2020.

The European Accessibility Act

In addition to the public sector accessibility Directive, the European Commission has also recently announced a separate and distinct proposed law called the European Accessibility Act (henceforth EAA). Similar to the wider Section 508 standards in the US, the EAA intends to address accessibility standards in hardware and equipment, such as ATMs, phones, and computers, as well as certain online areas such as banking services and public transport web sites.

In contrast to the stereotype of European law as micromanagement writ large, the draft EAA is unusually explicit on what it is not. Its formulators state from the outset that:

The directive will tell “what” needs to be accessible in terms of functional requirements but will not impose detailed technical solutions telling “how” to make it happen.

Accordingly, the ensuing draft requirements run parallel to the WCAG 2.0 principles of being perceivable, operable, understandable, and robust. In fact, these requirements have been applied to offline aspects of accessibility such as product packaging. Beyond that, the implication is that the Directive will require industries and sectors to accelerate the development or adoption of accessibility standards. Technical specifications will not be imposed from above.

The other aspect of the EAA worth monitoring is its claim that SMEs will not be subjected to undue or disproportionate burdens of conformance (DOCX, 890kb) and should be subjected to “lighter touch” regulation. This is an odd concession. While SMEs and micro-enterprises have been justifiably vocal on the disproportionate compliance burdens created by other European digital laws such as the Place of Supply reforms, coding in conformance with accessibility standards, or developing physical products which meet them, is neither a burden nor a problem. Likewise, for non-web aspects of accessibility such as disabled access to buildings, few would argue that a business’s size should exempt them from compliance. This concession may well be the right solution to the wrong problem.

As the draft EAA regulation was only announced at the beginning of December 2015, there is most definitely no realistic time frame for implementation or enforcement of the new regulation. For now, though, it may be quite telling that the European Blind Union, which was so scathing about the draft accessibility Directive, is positively ebullient about the EAA (DOC, 38kb).

The draft EAA itself continues the bemusing tradition of EU statements on accessibility failing at the first hurdle by residing in an infuriatingly cross-referenced series of four legally worded documents:

Proposal for European accessibility laws for products and services  (PDF 441kb)

Annex I to the Proposal for a European Accessibility Act  (PDF 226kb)

Annex II to the Proposal for a European Accessibility Act  (PDF 152kb)

Annex III to the Proposal for a European Accessibility Act (PDF 28kb)

We will take a brief look at two areas of the regulation which could have a direct impact on web development practices: the proposed accessibility requirements for e-commerce and e-books.

E-books

The proposed accessibility requirements for e-books are set out in Section VII of Annex I. The EU’s heading here is somewhat misleading, as the guidance applies not to e-books but to physical e-book readers. These requirements call for e-books readers to:

a) provide for communication and orientation via more than one sensory channel;

b) provide for alternatives to speech for communication and orientation;

c) provide for flexible magnification and contrast;

d) provide for an alternative color to convey information;

e) provide for flexible ways to separate and control foreground from background including for reducing background noise and improve clarity;

f) provide for user control of volume;

g) provide for sequential control and alternatives to fine motor control;

h) provide for modes of operation with limited reach and strength;

i) provide avoidance of triggering photosensitive seizures

While these proposed requirements may seem rather straightforward, what is interesting here is that the European Commission has clearly heeded the lessons learnt from the brief copyright dispute created by the introduction of text-to-speech functionality in Kindle e-book readers. In response to that dispute, the UK’s 2014 copyright overhaul permits the automatic conversion of an e-book into any accessible format required by any disabled individual for personal use. The EAA provisions here would emulate that law across Europe as a de facto overriding of any copyright laws still banning the practice.

E-commerce

The proposed accessibility requirements for e-commerce are also set out in Section VII of Annex I. These call for:

making websites accessible in a consistent and adequate way for users’ perception, operation and understanding, including the adaptability of content presentation and interaction, when necessary providing an accessible electronic alternative; and in a way which facilitates interoperability with a variety of user agents and assistive technologies available at Union and international level;

There are two problems here. The first, which could be taken as a personal gripe about presentation, is that this section is so vague as to be meaningless. For example, “providing an accessible electronic alternative” places a steep burden of compliance onto developers without regard for any accessible technology the affected individual may be using.

The second and more pointed problem is that this section uses the word “websites.” As with the accessibility Directive, there is no justifiable reason for an oversight of this magnitude at the dawn of 2016. For the EAA, does this choice of words omit the accessibility requirements of apps, whether standalone or enabled by in-app purchases? What of services like Apple Pay - would these qualify as online banking services, which are dealt with separately in the draft EAA, or would categorizing them as such open up an unintentional legal minefield? And what of third-party integrated e-commerce services such as “Verified by Visa” security checks and age verification mechanisms?

While it is early days, the e-commerce aspects of the EAA clearly will require further refinement.

Detours ahead

The draft European Accessibility Directive and the draft European Accessibility Act both indicate a clear, focused, and informed approach to accessibility law. The concerns raised about the former draft law also indicate the presence of a strong and healthy civil society ready and willing to work with policymakers to ensure the law fulfills its potential. Continued work by both sides will ensure that the right laws are passed in the right way at the right time.

The EU should, however, be mindful of its tendency to invoke digital utopianism - the belief that offline problems have online solutions - in their justifications for these draft laws. For example, the original 2012 impact assessment (.pdf, 439kb) for the European Accessibility Directive said the law would “encourage economic operators (web-developers), in particular SMEs, to consider business ventures outside their own domestic markets, and help them to elaborate more competitive service offers”, while the keyword-bingo announcement of the European Accessibility Act proclaims it “will help increase active participation in society, including in education and in employment, as well as autonomy and mobility opportunities.”

At the end of the day, web accessibility laws are about the creation of coding standards and development guidelines. They should never be mistaken for tools to build a fairer and more equal society. We have already seen what happens when draft accessibility laws try to please everybody and, as a result, succeed in pleasing no-one. Europe must learn from that mistake. Digital professionals - or, should we say, “economic operators” - who will be impacted by the two European draft regulations should not be forced to spend years waiting for technical guidelines to emerge from a road paved with good intentions.