The Knesset Labor, Welfare and Health Committee recently approved a comprehensive revision of Regulation 35 of the Accessibility to Online Services Regulations under the Equal Rights for People with Disabilities Regulations (Service Accessibility Adjustments), 2013.
Regulation 35 which came into effect in 2013 regulates the obligation to implement accessibility adjustments for people with disabilities in Israel. It applies to the owner/holder/operator of any website and application providing a “public service” and/or “information regarding a public service” via the internet to the general public in Israel. This includes, but is not limited to, municipalities and local authorities, businesses, government companies, NPOs, etc. Such technical accessibility adjustments must be carried out in conformity with the guidelines of Israeli Standard 5568 (which, apparently, is also expected to be revised soon, including the granting of reliefs to the accessibility obligation as it pertains to complicated documents).
Since Regulation 35 was promulgated, several problems arose in implementing it. These problems related to the practical/technical aspects of the accessibility obligation, the implementation costs, and the legal aspects. The revision of Regulation 35 (which is subject to possible rewording and is scheduled to come into effect soon, after promulgation in the official gazette) prescribes a new arrangement, the purpose of which is to strike a balance between the need to make online services accessible to people with disabilities and the technological and economic burdens deriving from implementation of these accessibility requirements.
The following is a summary of the principles of the amendments to Regulation 35:
1. Document accessibility obligation
Documents prepared as of October 26, 2017, and uploaded to a website/application – The original Regulation 35 required all documents in online services (such as in Word, PDF, and other formats) to be accessible, even if those documents were old documents. Now, the accessibility obligation applies only to documents prepared and uploaded to a website/application as of October 26, 2017.
Forms for online services that are designed to be completed via computer – Forms are obligated to be made accessible retroactively, even if they were prepared and uploaded prior to October 26, 2017. (The form’s accompanying explanatory document must undergo accessibility adjustments only if it was prepared and uploaded after October 26, 2015).
Documents containing personal information, when viewing them requires personal identification (entering a password) – The accessibility obligation will apply only as of December 31, 2021. However, from now until the end of 2021, the obligated entity must provide the document to a disabled person at his/her request in an accessible format, according to that person’s accessibility needs.
2. Precondition to filing a lawsuit in respect of failure to comply with the accessibility requirements – The amendment to Regulation 35 requires complainants to first complain to the obligated entity about the lack of accessibility on the website or application, in order to enable that obligated entity to rectify the breach and avoid a lawsuit. The obligated entity will then be required to rectify the breach and comply with the accessibility requirements within a reasonable time frame—no later than 60 days after receiving a complaint.
3. Third-party content – As stated, as a rule, the responsibility for the accessibility of a website/application applies to the owner/holder/operator of it. However, the amendment to Regulation 35 prescribes that an owner/holder/operator of a website/application will not be responsible for the accessibility of content found on its website/application that was produced and/or prepared by a third party. That is regardless of whether the content was delivered to the website owner by the third party and uploaded by the website owner, or was directly uploaded by the third party, unless the content was prepared and produced especially for the website owner and according to its instructions. However, the owner/holder/operator of the website/application is required to provide accessibility infrastructure for that content.
4. Accessibility to applications – Applications designed for use with mobile phones or tablets must comply with the requirements of the Israeli standard applying to those applications, if any. Since an Israeli standard regulating the accessibility of applications does not yet exist, applications must be made accessible according to the criteria prescribed in the Internet Accessibility Standard in Regulation 35, to the extent possible.
If a website is adapted for use via mobile phones and tablets, and the service provided on it is identical to the service provided on the application, then the accessibility adjustments must be made to only one of them—the website or the application. In addition, a link redirecting to the accessible service must be placed on whichever option (website or application) has not been adjusted for accessibility.
5. Video content – The obligation to make video content accessible (i.e. the obligation to provide subtitles and an audio and visual description of every video) applies solely to a public authority or private body with an average annual financial turnover of more than NIS 5 million, and only in relation to content uploaded as of October 26, 2017. The exception to this is a video which includes a conference, lecture, or meeting. In such a case, it will suffice to provide an alternative that complies with the accessibility requirements, such as adding a transcript or the minutes of the conference, lecture, or meeting.
6. Accessibility declaration – The owner of a website/application is required to specify the following details in a clear and visible location on its website and in the application that he/she operates (if any):
- An accessibility declaration that includes information about the accessibility adjustments that were made to the website/application;
- A declaration of the existence of an exemption from the accessibility requirements in relation to the website/application or a portion thereof, if any, and the alternative adjustments that exist, if any;
- Details of the accessibility coordinator and ways to contact him/her, if the law requires the appointment of such a coordinator;
- Contact details so that people can complain about a lack of accessibility adjustments or send a request to adjust the accessibility, including a demand to correct the accessibility of the website/application.
7. Exemptions and reliefs
The amendment to Regulation 35 significantly increases the number of exemptions and reliefs, as follows:
Technological exemption – If a technological difficulty arises, due to the technological infrastructure or interface, that prevents compliance with the accessibility requirements, then an exemption from the accessibility requirements may be obtained by submitting an opinion that confirms the need for the exemption has been examined. The exemption shall be issued by a service accessibility officer, after having consulted with a professional who specializes in making online services accessible to people with disabilities. The exemption will be in effect for a maximum of three years, and may be extended for an additional three years if a similar opinion is submitted. Also required is a confirmation from the Commissioner of Equal Rights for People with Disabilities that there is indeed a technological difficulty that justifies extending the validity of the exemption.
Exemption from accessibility requirements in relation to the content of closed (non-public) websites with 500 participants – An exemption from the accessibility requirements may be given in advance to websites requiring advance registration and that have a maximum of 500 participants registered simultaneously for the service. However, if a disabled person requests adjustments, then such website is required to make the content accessible for him/her.
Temporary or permanent complete exemption from making a website/application accessible – This exemption will be issued to the following website owners:
- an exempted trader;
- an obligated entity with an average annual turnover of not more than NIS 100,000;
- an obligated entity with an average annual turnover of between NIS 100,000 and NIS 300,000 shall be issued a temporary general exemption from the obligation to make its website/application accessible, up until October 26, 2020; after that date, the website/application will have to be accessible (unless another exemption applies, as specified herein);
- an obligated entity with an average annual turnover of between NIS 300,000 and NIS 1,000,000 shall be issued an exemption from making its website/ application accessible for three years (renewable every three years), provided that it fulfills all of the following criteria:
- The website/application was operated prior to October 26, 2017;
- The contact details for the purpose of receiving service from the obligated entity are published in an accessible manner through its internet service, or those of another entity that publicizes details of the service provider.
Exemption from making advertisements accessible – The amendment to Regulation 35 defines an exemption from making advertisements accessible, provided the advertisement offers an alternative, which is accessible by people with disabilities, that provides information about the service.
The deadline for making websites and applications accessible is October 26, 2017. In light of the short time frame, we recommend making preparations as soon as possible, including ascertaining whether the obligation to make your website or application accessible applies to you. If it does, you should consider in what manner, as well as what is important to be regulated in the engagement contract with the service provider making your website/application accessible.
Please note the legislature also imposes personal liability for the implementation of the accessibility adjustments on the owner/operator/holder of a website/ application. If you fail to make the accessibility adjustments, you are exposing yourselves to lawsuits and sanctions, both in the criminal/administrative track, through the imposition of fines, and in the civil track (including through individual lawsuits and monetary compensation, for which there is no need to prove damage and/or even a class action).