Due to the need to implement Directive 2016/2102 of the European Parliament and of the Council of 26 October 2016 on the accessibility of public sector bodies' websites and mobile applications (Official Journal of the EU L 327 of 02.12.2016, p. 1), the Polish legislator enacted the the law of 4 April 2019 on the digital accessibility of websites and mobile applications of public entities. The entry into force of this law entailed a number of new obligations for public entities to adapt their websites and mobile applications.
When discussing the topic of digital accessibility, it is worth recalling at the outset what digital accessibility itself means and which NGOs are obliged to make their websites and mobile applications compliant with the Digital Accessibility Act.
Digital accessibility refers to the principles and techniques that should be applied to design, develop, maintain and update websites and mobile applications to make them more accessible to users by making them perceivable, functional, understandable and compatible. The principles and techniques used must comply with the WCAG 2.1 standard, the Web Content Accessibility Guidelines. This is a standard published by the W3C organisation that provides a set of guidelines for web developers to follow in order to make their websites as accessible as possible to people with different disabilities.
And so functionality of a website or mobile application is to ensure that the information presented is fully accessible both through classic methods, e.g. displayed on a computer screen, but also readable in its entirety using as many tools as possible. Perceptibility is to present information in a way that enables it to be perceived through the different senses, as it should be borne in mind that not all web users use the same senses. Understanding is to ensure that any information presented, as well as how to access it, is understandable to every user.
What does this mean in practice? Public entities which are obliged to apply the guidelines of the Act are obliged, inter alia, to place on the website the contact details of the entity and a link to the entity's page in the Public Information Bulletin, contact tools (e.g. forms, video sign language interpreter, etc.), ensure proper navigation of the website, place an accessibility declaration on the website and provide accessible multimedia (e.g. including subtitles). The site should also include information on the emergency situation and publish accessible official documents and templates for contracts or other documents intended for civil obligations.
So now it is time to answer the question: who is obliged to apply the provisions on digital accessibility of public entities' websites and mobile applications?
The direct answer to this question can be found in Article 2 of the above-mentioned Act, in which the subject scope of the Act is defined. The legislator has shaped this scope by indicating the necessity of meeting two criteria - subjective and objective. The subjective criterion involves inclusion in one of the categories of entities listed in this provision. The subject criterion, on the other hand, provides for the requirement that the entity has a website or mobile application, or manages elements of websites or mobile applications placed in an environment that makes it possible to ensure the availability of digital content.
According to this provision, one of the groups of entities obliged to apply the provisions of the Act are non-governmental organisations, which are:
- which are not units of the public finance sector within the meaning of the Public Finance Act of 27.08.2009 (Journal of Laws of 2019, item 869 as amended) or enterprises, research institutes, banks and commercial law companies which are state or local government legal persons,
- non-profit-making legal persons or organisational entities without legal personality which are granted legal capacity by a separate act, including foundations and associations ( subject to Article 3(4)).
With regard to this group of entities, the legislator has introduced an additional subject premise, indicating that the Act applies only to those non-governmental organisations that carry out activities in the sphere of one or more of the following public tasks:
- health protection and promotion, including therapeutic activity within the meaning of the Act of 15.04.2011 on therapeutic activity (Journal of Laws of 2018, item 2190 as amended);
2) activities for the benefit of persons with disabilities;
3) activities for people of retirement age.
What kind of activity an organisation carries out is the same as its statutory activity (i.e. the activity compliant with its statute, which lists the organisation's activity objectives and ways of achieving them). If an association or foundation conducts any of the above activities - it means that it belongs to the circle of entities obliged to apply the provisions of the Act.
However, it should be borne in mind that an entity falling into one of the categories described above that simultaneously will be required to apply the provisions of the Act:
(1) has a website, (2) has mobile applications, (3) has a website and mobile applications, (4) manages elements of websites posted in an environment that enables digital content accessibility, (5) manages elements of mobile applications posted in an environment that enables digital content accessibility, (6) manages elements of websites and mobile applications posted in an environment that enables digital content accessibility, 7) owns a website and manages elements of websites posted in an environment that allows digital content accessibility, 8) owns a website and manages elements of mobile applications posted in an environment that allows digital content accessibility, 9) owns a website and manages elements of websites and mobile applications posted in an environment that allows digital content accessibility, 10) owns and manages the mobile applications elements of the websites and mobile applications posted in an environment that allows digital content accessibility, 11) owns and manages the mobile applications elements of the websites and mobile applications posted in an environment that allows digital content accessibility, 12) owns and manages the mobile applications elements of the websites and mobile applications posted in an environment that allows digital content accessibility, 13) owns a website and mobile applications and manages elements of websites and mobile applications posted in an environment that allows digital content accessibility, 14) owns a website and mobile applications and manages elements of mobile applications posted in an environment that allows digital content accessibility, 15) owns a website and mobile applications and manages elements of websites and mobile applications posted in an environment that allows digital content accessibility.
In summary, the law only applies to selected NGOs and not to all. Refers to those NGOs working for the benefit of people with disabilities, seniors and in the field of social assistance and health care. The legislator treats these selected NGOs like other public entities, which are obliged to comply with the provisions of the Act. However, it should be emphasised that the Act does not compel to have a website (www) and mobile applications, and only applies to those entities that have websites or intend to build them.
As I mentioned earlier, public entities that are obliged to apply the guidelines of the Act are obliged, among other things, to post on the website of the declarations of availability. From 23 September 2020, such a declaration is mandatory for every website and from 23 June 2021 for every mobile application that belongs to a public entity. The accessibility declaration, which is drawn up according to the model of the Ministry of Digitalisation, is a description of the state of accessibility of a public entity for people with disabilities. It informs these people about the solutions, but also the problems they will encounter on the public entity's website and mobile application. Remember to update this document every year by the end of March and after each major update of the website.
Act of 4 April 2019. on the digital accessibility of public bodies' websites and mobile applications foresees circumstances in which an organisation may fail to meet its accessibility obligation. Reasons for not providing accessibility may be, for example, the excessive costs of implementing such standards (Article 8 of the Act). Importantly, however, an entity that cannot provide accessibility due to excessive costs must still carry out an in-depth analysis including, among other things, an assessment of the increased accessibility of the website or application, information on the extent to which the content relates to persons with disabilities, an estimate of the costs of providing accessibility to the website, an indication of when the website and application were created (or planned to be launched), information on the frequency of updates and the number of users.
In addition, invoking an excessive cost burden does not absolve the obligation to ensure the availability of basic information and to make available an accessibility statement. Such a document should also include the results of the analysis carried out. This publication will allow, in the event of an audit, to verify the legitimacy of the invocation of the provision in question. This will be a basis for a possible request to the entity for additional clarification. At the same time, the legislator has deliberately not explicitly defined the meaning of the term "excessiveness", as this is in fact unworkable. "Excessiveness" of costs for a small office that nevertheless has a guaranteed annual budget is a completely different category than for a small non-governmental organisation that uses public funds, applying for funding each time and often has to "fight" for every zloty.
Monika Stemplewska, advocate
Stemplewska Law Group, Rytel
Advocates and Legal Advisers sp.p.
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