New “Tech Products Toolkit”: Don’t delay: Putting digital accessibility compliance front and center | Hogan Lovells

Digital accessibility is a huge topic, and the requirements impacting on digital accessibility for products companies can come from many sources.

Some jurisdictions have specific accessibility laws relating to consumer products – this includes the EU’s European Accessibility Act (Directive (EU) 2019/882).  The European Accessibility Act covers items such as:

• Digital products including consumer general purpose computer hardware systems (and operating systems) which includes desktops, notebooks, smartphones, and tablets; consumer terminal equipment with interactive computing capability, used for electronic communications services or for accessing audio-visual media services; and e-readers; and payment terminals and certain self-service terminals such as ATMs, ticketing and check-in machines, and interactive self-service information terminals;

• Digital services including electronic communications services; services providing access to audio-visual media services; some elements of passenger transport services; consumer banking services; e-books and dedicated software; and e-commerce services.

Companies also need to consider digital accessibility requirements that can derive from:

• Laws relevant to specific sectors or functions (eg impacting on the provision of public services, the military, education, and healthcare).

There has been a paradigm shift in consumer expectations and behaviours in response to the perceptions of a business’s ethical framework. Consumers are turning away from businesses that do not champion the values that they embrace, and are seeking out those that do. Across all markets, consumers are also becoming increasingly aware of different diversity, equality and inclusion issues which naturally translates into a change in consumer attitude. As “ethical purchasing” gradually gains momentum across all regions (with Europe and North America currently being the most advanced), businesses need to follow suit and align themselves with the evolving demands and needs of their consumers.

Let’s take a deeper look: what is happening in the APAC region?

Legislative efforts on digital accessibility have mostly been focused on public sector organizations. Whilst there are apparent and tangible benefits and opportunities with tapping into the market of consumers with different accessibility needs (i.e. the broadening of consumer base, the brushing up of corporate image, etc.), the provision of more accessibility digital infrastructure to consumers is not straightforward in light of cost and resource allocations. At present, the private sectors in APAC generally have not yet invested heavily in strengthening the accessibility of digital platforms on the whole.  The region generally could be said to lag behind the developments we’re seeing in Europe and North America. Those private sectors companies already implementing digital accessibility are often doing so in alignment with their own global initiatives: i.e. APAC subsidiaries follow where global headquarters lead.  That said, these companies increasing accessibility early are likely to reap the rewards in terms of an expanded user base and an increasing global emphasis on accessibility and inclusion.  Bravo to the game-changers.

Looking at the EU: progression with digital accessibility

Outside APAC, companies often focus their thinking on digital accessibility especially when legislators increasingly push for minimum digital accessibility requirements for manufacturers or suppliers.  This is shown for example by the Web Accessibility Directive (Directive (EU) 2016/2102) which has been in force since 22 December 2016 and aims at providing people with disabilities with better access to websites and mobile apps of public services, and by the introduction of the European Accessibility Act, which needed to be transposed by 28 June 2022 by the EU Member States.

A snap-shot from the US on digital accessibility

Digital accessibility is one focus of the Federal Communications Commission, given the ever increasing rise of digital products and services, especially following the Covid-19 pandemic. At the start of 2022, the FCC announced a refresh of its record on accessibility rules for video programming. Specifically, the FCC indicated that it would look to amend or pass new legislation to update the Twenty-First Century Communications and Video Accessibility Act (the CVAA). This has been borne out more recently by the FCC seeking public comments on two aspects of the CVAA:

• Seeking comments from the public as to the meaning of “interoperable” in the context of “interoperable video conferencing services”, which the CVAA requires to be accessible; and

• Seeking comments on tentative findings the FCC compiled from comments submitted by public/private interests groups on accessibility in telecommunications/communications services provided for in the CVAA.

We expect further refinement  of the CVAA following the FCC’s public consultations, and potentially new legislation in respect of digital accessibility in the latter part of this year, as we move into 2023.

What three things should companies focus with respect to the needs of “digital accessibility” in the years ahead?

• Consider committing to principles of universal design – The universal design concept asserts that everything should be designed to be accessible not only to persons with diverse disabilities, but generally to the broadest possible spectrum of people. Businesses are encouraged to create websites and other digital platforms in compliance with this principle. For example, allowing consumers to turn on a seizure-free feature on a website in order to eliminate flashes and to reduce bright screen colours. The Web Content Accessibility Guidelines promulgated by the World Wide Web Consortium¹ and the guidelines issued within different jurisdictions serve as benchmarks.

• Make use of local resources – Although compliance with specific digital accessibility standards is generally not a legal requirement for private businesses in some regions, governmental entities often take the initiative to disseminate best practice guides, seminars and auditing services in order to support and encourage the private sector to adopt digital accessibility practices: and this has happened in the APAC region. For example, the Office of the Government Information Officer in Hong Kong provides free technical workshops to help businesses comply with best practices for making their digital platforms accessible and organizes a Recognition Scheme to show appreciation to organizations who successfully do so.

• Think from your consumers’ perspectives – Very often, the main ingredient to a successful business strategy is the willingness to adapt to the consumers’ needs. Businesses are encouraged to take into account the perspectives of consumers with disabilities when developing digital infrastructures. Consider the needs of consumers, utilise new innovations and technologies and ultimately, drive your ethics-centred business.

How can Hogan Lovells help?

Hogan Lovells is ideally placed to help companies thinking about digital accessibility.  Hogan Lovells has a long history of advising leading players of the digital economy on a wide range of issues, from monitoring legislative processes to lobbying (including on digital accessibility).  We have an impressive knowledge of the intricacies of the various requirements to enable us to provide a solution-oriented advice to our clients.  We lead in helping to bring innovative products to market – and digital accessibility has become front and centre for many of our clients.

This article is part 1 of a series of articles, which examine the development considerations and the legal challenges that companies should consider when creating and launching a new technology product or service. We will take a detailed look at key issues impacting companies bringing innovative products and services to market and explore the specific factors that should be considered before product launch  including accessibility, product liability, privacy and data protection, product safety, supply chain, antitrust, and intellectual property.

References

1 https://www.w3.org/WAI/standards-guidelines/wcag/