ACCESSIBILITY OF THE WEBSITES AND MOBILE APPLICATIONS OF PUBLIC SECTOR BODIES REGULATIONS

APPLICATIONS OF PUBLIC SECTOR BODIES

SUBSIDIARY LEGISLATION 418.03

ACCESSIBILITY OF THE WEBSITES AND MOBILE

APPLICATIONS OF PUBLIC SECTOR BODIES

REGULATIONS

7th May, 2019

LEGAL NOTICE 89 of 2019.

PART I

Preliminary

(1)

The title of these regulations is Accessibility of

the Websites and Mobile Applications of Public Sector Bodies

Regulations.

(2)

These regulations implement the provisions of Directive

(EU) 2016/2102 of the European Parliament and of the Council of the

26 October 2016 on the accessibility of the websites and mobile

applications of public sector bodies.

For the purposes of these regulations, unless the context

otherwise requires

''accessibility'' means principles and techniques to be

observed when designing, constructing, maintaining, and

updating websites and mobile applications in order to make

them more accessible to users, in particular, but in no way

limited, to persons with disabilities;

''Act'' means the Malta Communications Authority Act

and includes any regulations made thereunder unless the context

otherwise requires;

''Authority'' means the Malta Communications Authority

established under the Act;

''bodies governed by public law'' means bodies that have

all of the following characteristics

(a)

they are established for the specific

purpose of meeting needs in the general interest, not

having an industrial or commercial character;

(b)

they have legal personality; and

(c)

they are financed, for the most part, by the

State, regional or local authorities or by other bodies

governed by public law; or are subject to management

supervision by those authorities or bodies; or have an

administrative, managerial or supervisory board, more

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than half of whose members are appointed by the State,

regional or local authorities, or by other bodies governed

by public law;

''content of websites and mobile applications'' shall

include textual as well as non-textual information,

downloadable documents and forms, and two-way interaction

such as the processing of digital forms and the completion of

authentication, identification and payment processes;

''items in heritage collections'' means privately or publicly

owned goods presenting a historical, artistic, archaeological,

aesthetic, scientific or technical interest and that are part of

collections preserved by cultural institutions such as libraries,

archives and museums;

''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 regulation 4. It

covers both quantitative information about the sample of

websites and mobile applications tested, such as the number of

websites and applications with, potentially, the number of

visitors or users; and quantitative information about the level of

accessibility;

''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 or hardware;

''non-governmental organisation'' means a voluntary self-

governing body established to pursue essentially non-profit

making objectives;

''office file formats'' means 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;

''public sector body'' means the State, regional or local

authorities, bodies governed by public law, 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;

''stakeholders'' shall include persons with disabilities,

APPLICATIONS OF PUBLIC SECTOR BODIES

organisations representing the interests of persons with

disabilities and of the elderly, social partners, industry involved

in the creation of accessibility software relating to websites and

mobile applications, and civil society;

''standard'' means a technical specification, adopted by a

recognised standardisation body, for repeated or continuous

application, with which compliance is not compulsory, and

which is one of the following

(a)

''international standard'' means a standard

adopted by an international standardisation body;

(b)

''European standard'' means a standard

adopted by a European standardisation organisation;

(c)

''harmonised standard'' means a European

standard adopted on the basis of a request made by the

European Commission for the application of European

Union harmonisation legislation;

''time-based media'' means media of the following types

audio-only, video-only, audio-video, audio and/or video

combined with interaction; and

''Tribunal'' means the Administrative Review

Tribunal

established by article 5 of the Administrative Justice Act.

(1)

These regulations lay down provisions 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.

(2)

These regulations shall 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

non-

governmental organisations that

(i)

do not provide services that are essential to

the public, such as services that are directly mandated by

State, regional or local authorities, or

(ii)

do not provide services that specifically

address the needs of, or are meant for, persons with

disabilities;

APPLICATIONS OF PUBLIC SECTOR BODIES

(c)

websites and mobile applications of schools,

kindergartens or nurseries, except for the content thereof

relating to essential online administrative functions

Provided that, where such essential content is

provided in an accessible manner through another website, it

shall not be required to be made accessible again on the website

of the establishment concerned.

(3)

These regulations shall 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 services performed by the public sector

body concerned;

(b)

pre-recorded time-based media published before

23 September 2020;

(c)

live time-based media

Provided that live time-based media that are kept

online or republished after the live broadcast shall 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, which period of time shall in principle not exceed

fourteen (14) days

Provided further that in justified cases, such as

when it is impossible to procure the relevant services in due

time, such period might exceptionally be extended to the

shortest time necessary to make the content accessible;

(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

Provided that 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 shall

not be considered as third-party content and shall not therefore

be excluded from the scope of these regulations, except in the

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case of user-contributed content which is not 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, such as

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, meaning

websites that are only available for a closed group of persons

and not to the public in general, published before 23 September

2019, until such websites undergo a substantial revision;

(h)

content of websites and mobile applications

qualifying as archives, meaning that such websites and mobile

applications only contain content that is neither needed for

active administrative processes nor updated or edited after 23

September 2019.

Public sector bodies shall take the necessary measures to

make their websites and mobile applications more accessible by

making them

(a) perceivable, meaning that information and user

interface components are presentable to users in ways they can

perceive;

(b) operable, meaning that user interface components

and navigation are operable;

(c) understandable, meaning that information and the

operation of the user interface are understandable; and

(d) robust, meaning that content must be robust

enough to be interpreted in a reliable manner by a wide variety

of user agents, including assistive technologies.

(1)

Public sector bodies shall apply the accessibility

requirements set out in regulation 4 to the extent that those

requirements do not impose a disproportionate burden on them for the

purposes of that regulation

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Provided that for the purposes of this regulation, measures

that would impose a disproportionate burden shall be understood as

measures that would impose an excessive organisational or financial

burden on a public sector body, or would jeopardise the capacity of the

body to either fulfil its purpose or to publish information needed for or

relevant to its tasks and services, whilst taking into account the likely

resulting benefit or detriment for citizens, in particular persons with

disabilities

Provided further that only legitimate reasons shall be

taken into account in any assessment of the extent to which the

accessibility requirements cannot be met because they would impose a

disproportionate burden; in particular, lack of priority, time or

knowledge shall not be considered as legitimate reasons, nor shall there

be deemed to be any legitimate reasons for not procuring or developing

software systems to manage content on websites and mobile

applications in an accessible manner.

(2)

In order to assess the extent to which compliance with the

accessibility requirements set out in regulation 4 imposes a

disproportionate burden, public sector bodies shall take 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

users, in particular but in no way limited to persons with

disabilities, taking into account the frequency and duration of

use of the specific website or mobile application.

(3)

Without prejudice to sub-regulation (1), the public sector

body concerned shall perform the initial assessment of the extent to

which compliance with the accessibility requirements set out in

regulation 4 imposes a disproportionate burden.

(4)

Where a public sector body avails itself of the derogation

provided for in sub-regulation (1) for a specific website or mobile

application, after conducting an assessment as referred to in sub-

regulation (2), it shall endeavour to make the content in question as

accessible as possible and shall make other content fully accessible.

(5) Where a public sector body avails itself of the derogation

provided for in sub-regulation (1) for a specific website or mobile

application after conducting an assessment as referred to in sub-

regulation (2), it shall explain, in the accessibility statement referred to

in regulation 7, the part or parts of the accessibility requirements that

could not be complied with and shall, where appropriate, provide

accessible alternatives.

APPLICATIONS OF PUBLIC SECTOR BODIES

(6)

Public sector bodies shall provide the Authority with a

written report on the initial assessment referred to in sub-regulation (2)

of the extent to which compliance with the accessibility requirements

set out in regulation 4 imposes a disproportionate burden, and the said

report shall also include a description of the accessible alternatives

referred to in sub-regulation (5)

Provided that, without prejudice to his powers to initiate

investigations pursuant to regulation 9, the Authority may deliver a

written opinion on the initial assessment report within twenty (20)

days of receipt thereof, requesting the public sector body concerned to

take any measures he deems necessary in the circumstances. Such

written opinion shall be communicated to the public sector body

concerned by registered letter.

(1)

Content of websites and mobile applications that

meets harmonised standards or parts thereof, the references to which

have been published by the European 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 regulation 4 that are covered by

those standards or by parts thereof.

(2)

Where no references to the harmonised standards

referred to in sub-regulation (1) have been published, content of

mobile applications that meets the technical specifications or parts

thereof that may be established through implementing acts adopted by

the European Commission shall be presumed to be in conformity with

the accessibility requirements set out in regulation 4 that are covered

by those technical specifications or by parts thereof.

(3)

Where no references to the harmonised standards

referred to in sub-regulation (1) 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 regulation

4 that are covered by those relevant requirements or by parts thereof.

(4)

Where no references to the harmonised standards

referred to in sub-regulation (1) have been published, and in the

absence of the technical specifications referred to in sub-regulation

(2), 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 regulation 4 that are covered by

those relevant requirements or by parts thereof.

(1)

Public sector bodies shall provide and regularly

update a detailed, comprehensive and clear accessibility statement on

the compliance of their websites and mobile applications with these

APPLICATIONS OF PUBLIC SECTOR BODIES

regulations.

(2)

For websites, the accessibility statement shall be provided

in an accessible format, using the model accessibility statement that

may be established through implementing acts adopted by the

European Commission and shall be published on the relevant website.

(3)

For mobile applications, the accessibility statement shall

be provided in an accessible format, using the model accessibility

statement that may be established through implementing acts adopted

by the European Commission and shall be available on the website of

the public sector body that developed the mobile application

concerned, or alongside other information available when downloading

the application.

(4)

The accessibility statement shall include

(a)

an explanation concerning those parts of the

content that are not accessible, and the reasons for that

inaccessibility and, where appropriate, the accessible

alternatives provided for;

(b)

a description of, and a link to, a feedback

mechanism enabling any person to notify the public sector body

concerned of any failure of its website or mobile application to

comply with the accessibility requirements set out in regulation

4, and to request the information excluded pursuant to sub-

regulation (3) of regulation 3 and regulation 5; and

(c)

a link to the enforcement procedure set out in

regulation 9 to which recourse may be had in the event of an

unsatisfactory response or of a lack of a response to the

notification or the request.

(5)

Where a public sector body receives a notification or a

request pursuant to sub-regulation (4)(b), it shall provide an adequate

response to such notification or request within fifteen (15) working

days.

(6)

The Authority shall adopt measures to facilitate the

application of the accessibility requirements set out in regulation 4 to

websites and mobile applications other than those of public sector

bodies and, in particular, to websites and mobile applications covered

by existing national laws on accessibility.

(7) The Authority shall promote and facilitate training

programmes relating to the accessibility of websites and mobile

applications for relevant stakeholders and staff of public sector bodies,

designed to train them how to create, manage and update the accessible

content of websites and mobile applications.

APPLICATIONS OF PUBLIC SECTOR BODIES

(8)

The Authority shall take the necessary measures to raise

awareness of the accessibility requirements set out in regulation 4, of

their benefits to users and to owners of websites and mobile

applications, and of the possibility of giving feedback in the case of

any failure by public sector bodies to comply with the requirements of

these regulations as set out in this regulation.

(1)

The Authority shall periodically monitor the

compliance of websites and mobile applications of public sector

bodies with the accessibility requirements set out in regulation 4, on

the basis of the monitoring methodology that may be established

through implementing acts adopted by the European Commission.

(2)

By 23 December 2021, and every three (3) years

thereafter, the Authority shall prepare and submit to the European

Commission a report on the outcome of the monitoring, including the

measurement data. Such report shall be drawn up on the basis of the

arrangements for reporting referred to in sub-regulation (4), and it

shall also cover information on the use of the enforcement procedure

set out in regulation 9.

(3)

In relation to the measures adopted pursuant to regulation

7, the first report shall also cover the following

(a)

a description of the mechanisms set up for

consulting with relevant stakeholders on the accessibility of

websites and mobile applications;

(b)

procedures to make public any developments in

accessibility policy relating to websites and mobile

applications;

(c)

experiences and findings from the implementation

of the rules on conformity with the accessibility requirements

set out in regulation 4; and

(d)

information on training and awareness-raising

activities

Provided that, where significant changes have

been made in relation to the above elements, the Authority shall

include in subsequent reports information concerning those

changes.

(4)

The content of all the reports, which need not list the

websites, mobile applications or public sector bodies examined, shall

be made public in an accessible format in accordance with the

arrangements for reporting by Member States that may be established

through implementing acts adopted by the European Commission.

(1)

The Authority shall initiate investigations on the

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website or mobile application of a public sector body where he has

reason to believe that such public sector body has acted or is acting in

breach of these regulations.

(2) The Authority shall also initiate investigations on the

website or mobile application of a public sector body upon the receipt

of a complaint in writing by any person alleging that such public sector

body provided an unsatisfactory response or failed to provide a

response to a notification or request within the time period specified in

sub-regulation (5) of regulation 7, or has otherwise acted or is acting in

breach of the provisions of these regulations.

(3)

When commencing an investigation pursuant to sub-

regulation (1) or (2), the Authority shall notify all the parties concerned

in accordance with the methods of service set out in regulation 13, that

it intends to carry out an investigation. When notifying the public

sector body concerned, the Authority shall inform it that the Authority

has reason to believe that that public sector body acted or is acting in

breach of these regulations, and shall grant the public sector body

concerned fifteen (15) days from the service to reply in writing to the

Authority, stating whether that public sector body considers the

complaint to be justified, which course of action it will be taking to

remedy the situation, as the case may be, and a reasonable time line

within which it will implement the course of action as indicated.

(4)

By means of a notice in a format accessible to the

intended recipient, the Authority may, if so required for the purpose of

carrying out an investigation, request any person –

(a)

to provide it with any information that may be

described in the said notice;

(b)

to produce any documents in possession or control

of that person relating to the investigation

Provided that a person shall not be obliged to give

information or produce a document requested if that person is

deemed to be exempt from providing that information or

producing the document before the Court in civil proceedings.

(5)

The Authority shall communicate its decision stating

whether or not the public sector body concerned has failed to comply

with, or has otherwise acted or is acting in breach of, any of the

requirements set out in these regulations to the parties concerned, in

accordance with the methods of service set out in regulation 13. In its

decision of the Authority shall give the reasons for its finding of a

breach of these regulations, and shall request the public sector body

concerned to undertake any remedial action the Authority deems

necessary in the circumstances within a specified time limit and inform

the public sector body that, in default, the Authority shall proceed to

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undertake compliance measures as provided for in these regulations

Provided that the Authority may, upon receipt of a

request by the public sector body concerned made in writing or by

electronic means within seven (7) days of service of the decision,

decide to extend the time limit for compliance with the decision if the

Authority considers that the circumstances of the case so warrant.

(6)

In the event that the public sector body concerned,

having been served with the decision of the Authority as provided in

sub-regulation (5), fails to take the necessary action within the

specified time limit, the Authority shall in the first instance proceed to

undertake a compliance measure consisting of the publication of the

name of the public sector body and of the decision of the Authority in

accordance with the provisions of regulation 11

Provided that, prior to taking of any such compliance

measures pursuant to this sub-regulation, the Authority shall issue a

final warning to the public sector body concerned in accordance with

the methods of service set out in regulation 13, stipulating a further

time-limit which may not exceed fifteen (15) days from service of such

warning within which the public sector body must comply with its

decision, and specifying the compliance measures that will be taken if

the public sector body concerned remains in default of such

compliance

(7)

If notwithstanding the publication of the name of the

public sector body and of the decision of the Authority as provided for

in sub-regulation (6), the public sector body persists in not complying

with the aforesaid decision, the Authority may then impose an

administrative fine in accordance with the provisions of regulation 11.

(1)

The Authority shall be responsible for monitoring

and enforcing the application of the provisions of these regulations in

order to ensure the compliance of websites and mobile applications of

public sector bodies with the accessibility requirements set out in

regulation 4.

(2)

The Authority may seek the advice of, and may consult

with, any other competent body or entity in the exercise of its

functions under these regulations.

(1)

Subject to the provisions of regulation 9(6), where

a public sector body does not comply with any of its obligations

pursuant to these regulations, then the Authority may in the first

instance publish the name of the public sector body and the decision of

the Authority taken pursuant to regulation 9(5) in any such manner as

it considers appropriate in the circumstances.

(2)

If notwithstanding the compliance measure taken by the

Authority under sub-regulation (1), the public sector body still fails to

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comply with the decision of the Authority, then the Authority may, if

such a decision has not been appealed by the public sector body,

impose an administrative fine not exceeding twenty thousand euro

(€20,000)

Provided that before proceeding to impose any such fine

the Authority shall write to the non-compliant public sector body

warning it of the fine that may be imposed, the reasons there for, giving

that public sector body a period of seven (7) days in which to make its

written submissions. The Authority shall then proceed to decide

whether to impose a fine and if it decides to impose a fine the amount

thereof. In doing so the Authority shall state its reasons there for.

(3)

For the purposes of these regulations the Authority may

when undertaking a compliance measure which includes the publication

of a decision, at its discretion publish only a summary consisting of the

salient points of its decision such as it may consider appropriate in the

circumstances.

(1)

The public sector body concerned or the

complainant as the case may be, may lodge an appeal before the

Tribunal from a decision of the Authority issued pursuant to these

regulations.

(2)

The effects of a decision by the Authority which is

appealed from shall not, except where the Tribunal or the Court of

Appeal, as the case may be, so orders, be suspended by virtue of the

appeal

Provided that any administrative fine imposed by the

Authority shall not apply until the public sector body on whom the

administrative fine is imposed has exhausted the right of appeal that it

may exercise in accordance with these regulations, or if the public sector

body to whom the decision is addressed has permitted the applicable

time-limits to contest such a fine expire without availing itself of the said

right of appeal.

(1)

Where the Authority exercises its powers pursuant

to these regulations, the decision of the Authority shall forthwith be

served on the public sector body to whom the decision is addressed and

on the complainant, as the case may be, either by registered post to the

official address of the public sector body and to the last known business

or private address of the complainant, or by electronic means that

provide a reliable record of when service took place.

(2)

In the case of service by electronic means, the decision

shall be deemed to have been served upon the public sector body to

whom the decision is addressed, and on the complainant as the case

may be, when the Authority has received

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(a)

an electronic receipt automatically generated by

the e-mail server when the communication is read; or

(b)

a written confirmation by return electronic mail

from an employee of the public sector body to whom the

decision is addressed, and from the complainant as the case

may be.

(3)

If service is not effected within a week of issuing the

decision for any reason attributable to the public sector body to whom

the decision is addressed, or to the complainant as the case may be, the

Authority shall publish a notice in the Gazette and in one or more daily

newspapers, stating that a decision has been taken in respect of the

public sector body to whom the decision is addressed, or the

complainant as the case may be, and inviting it or him to collect the

decision from the Authority. In any such case, service shall be deemed

to have been effected on the third day after the date of publication of

the last notice.

These regulations shall apply as follows

(a)

to websites of public sector bodies not published

before 23 September 2018, from 23 September 2019;

(b)

to websites of public sector bodies not covered by

paragraph (a), from 23 September 2020; and

(c)

to mobile applications of public sector bodies,

from 23 June 2021.