Making public information accessible to people with disabilities is a major challenge for public entities, especially at a time when most information is available on a computer or a smartphone. Public websites are often an insurmountable barrier for people with disabilities. Lack of transcription of multimedia materials or appropriate keyboard shortcuts sometimes even prevents them from accessing key information, and thus significantly hinders social participation and results in their exclusion. This problem was noticed by the European Commission 4 years ago, and on September 23, 20201 national legislation on this matter will come into force.
According to the law of April 4, 2019, on digital accessibility of websites and mobile applications of public entities, which is a legal act implementing the EU directive of July 19, 2016, as of September 23, 2020, all public entities, as defined by the Law on Public Finance, should ensure digital accessibility of their websites. By ensuring digital accessibility, the legislator in this particular case means guaranteeing the digital accessibility of the Public Information Bulletin page of the entity and the specifically mentioned elements and functions of the website. These elements are primarily: contact details, tools for contacting the entity, functions related to navigation, information on emergencies, and “declaration of availability”.
The criteria for evaluating the accessibility of websites (and, as of June 23, 2021, also of mobile applications) are determined by the Annex to the Act, and their fulfillment, as stated in Article 5.1 of the discussed Act, is “a condition for ensuring the digital accessibility of the website”. The criteria contained in the annex are based on the structure of the Web Content Accessibility Guidelines recommendations developed in the 1990s. These recommendations are divided into four “principles” (permeability, functionality, understandability, and compatibility), which are in turn divided into “guidelines”. The various guidelines can be met by presenting specific content in a manner consistent with the “success criteria”. Each of these criteria has been assigned one or two “A’s”. Satisfying the criteria marked with a single “A” is necessary for the content to be considered accessible to people with disabilities at all. Fulfilling those marked with “AA” improves the comfort of use and increases the ease of access to the content presented on the site.
Declaration of availability
An important element of the discussed act is the so-called “accessibility declaration”. The declaration is to be drawn up according to a specific template and include information on, for example, keyboard shortcuts used on the website or architectural accessibility of the entity’s headquarters. The legislator imposes on public entities an obligation to prepare such a declaration for each website (and in the future also for mobile applications), which has two basic functions: informational and verification.
Every year (on March 31), public entities will review and update their “accessibility declarations. They will also update their “accessibility declarations” when changes occur that could affect the digital accessibility of their sites (Article 11 of the law).
Social control mechanism
As per the EU directives, a mechanism had to be established to enable any person to send feedback to the concerned public bodies on the digital facilities they are introducing. Thus, according to the law, anyone has the right to request a public body to ensure the digital accessibility of a particular website or a particular element of a website. This solution serves both the people affected by a disability by making it easier for them to work out new solutions for digital accessibility with a public institution (e.g. implementation of alternative ways of ensuring accessibility) and is an element allowing to exercise social control over the implementation of the Act. In principle, compliance with such a request should take place no later than 7 days after the request, otherwise, the Act gives the person who made the request the right to complain (Article 18(7)).
Financial penalties for failure to ensure digital accessibility
The legislator imposes obligations on the Minister of Digitalisation to control the provision of digital accessibility. The Minister is obliged to monitor the state of digital accessibility once a year, and once every three years, according to the law, he is obliged to compile and present the results of his activities to the European Commission. Besides, the legislature also establishes financial penalties for public entities that:
i) unreasonably and persistently fail to ensure the accessibility of a digital website or mobile application (Article 19, paragraph 1, item 1),
ii) fail to prepare and publish accessibility declarations or whose declarations do not contain the relevant elements specified in the Act (Article 19 (1) (2))
iii) fail to ensure digital accessibility of the BIP subject site (Article 19, section 1, item 3).
The rationale for a finding of “unjustified and persistent” failure to ensure digital accessibility will be the finding of a lack of improvement in three consecutive monitors (performed year to year by the Minister of Digitalisation). On the other hand, when it comes to ascertaining a public entity’s failure to comply with the requirements for preparing accessibility declarations and the digital accessibility of the entity’s BIP website, two consecutive monitors will suffice here. The first penalties under points 2 and 3, whose statutory amount is PLN 5,000, could thus be imposed in 2022, while the first penalties under point 1 (amounting to PLN 10,000) could be imposed in 2023.