Scope: does the Act apply to us?
The Act on the Provision of Digital Services mainly obliges organisations acting as authorities to make their online services, i.e. websites and mobile applications, compliant with accessibility requirements.
In addition to the authorities, the accessibility requirements apply to institutions governed by public law and some organisations . Accessibility requirements may also apply to online services of some organisations on the basis of a special grant . In addition, some of the private sector belongs to the scope of the accessibility requirements.
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In other words, the accessibility requirements laid down in the Act primarily apply to the authorities.
The following actors fall under the concept of authorities:
- Government agencies, such as Regional State Administrative Agencies, the Finnish Transport and Communications Agency, the Finnish Transport Infrastructure Agency and the National Audit Office of Finland
- wellbeing services counties and wellbeing consortiums
- universities of applied sciences and universities
- municipalities, municipal organisations, municipal enterprises and joint municipal authorities
- state enterprises, such as Senate Properties
- organisations that carry out a public administrative task (a task assigned by law); for example, private care institutions that carry out public administration tasks
- independent institutions governed by public law, such as the Social Insurance Institution of Finland, the Bank of Finland, the Municipal Guarantee Board and the Finnish Forest Centre
- associations governed by public law when performing public administration duties; for example, the Finnish Bar Association, students’ unions, forest centres, the Hunters’ Central Organisation, game management associations, Reindeer Herders’ Association, chambers of commerce and fishing areas.
Institutions governed by public law
The Act also applies to institutions governed by public law. If the organisation is not an authority, it shall be determined whether it is an institution governed by public law. In this Act, the concept of an institution governed by public law is defined by the Procurement Directive and the Act on Public Procurement and Concession Contracts. In practice, if the organisation is a contracting entity as defined in the Act on Public Procurement and Concession Contracts, it also likely is obliged to comply with accessibility requirements.
It is not always entirely clear whether an organisation is an institution governed by public law or not.
The assessment is based on these criteria:
- First, it is assessed whether the organisation is an independent legal entity (i.e. not a natural person, i.e. a human). Legal entities are organisations for which benefits and obligations may be imposed.
- In the case of a legal entity (i.e. not a person but an organisation), the nature of its activities is assessed. If the organisation has been established to respond to needs in the public interest and it has no industrial or commercial character, it may be an institution governed by public law.
- In addition, at least one of the following criteria must be met:
a) the activities are mainly funded by an authority (or another institution governed by public law); or
b) the management is under the supervision of those authorities; or
c) more than half of the members of their administrative, management or supervisory bodies are appointed by the authorities.
Examples of institutions governed by public law to which the accessibility requirements of the Act apply:
- Rental housing company owned by the municipality
- Municipal enterprises
- Real estate company owned by the University Hospital Education Foundation
- Finnish Student Health Service
- The Farmers’ Social Insurance Institution Mela
- Suomen Erillisverkot Oy
- Helsingin Musiikkitalo Oy
- National Gallery
- The Finnish Association on Intellectual and Developmental Disabilities (FAIDD)
It is not always evident whether an organisation is an institution governed by public law or not. Both national and European courts have reflected on this matter on a number of occasions. In these cases, it is usually necessary to consider whether the organisation has been established for the public interest and, in particular, whether it has an industrial and commercial character or not.
Organisations and accessibility requirements
Some organisations belong to the scope of the accessibility requirements. For example, many organisations receiving assistance from the Funding Centre for Social Welfare and Health Organisations (STEA) are considered to be institutions governed by public law on the basis of the above-listed criteria.
Organisations are legal entities as defined in the law if they are usually established to contribute to the public interest and have no commercial character. If the organisation receives aid from an authority, such as STEA or a ministry, to fund its activities and this aid makes up at least half of its total funding, it is considered to be an institution governed by public law. This means that accessibility requirements apply to this organisation.
Services that are being developed or used with the support of the authorities
A website or mobile application produced by an organisation other than an authority or an institution governed by public law may also be in the scope of accessibility requirements if it is developed or maintained with funding from public authorities.
If the organisation receives funding allocated to the development, use or maintenance of a specific online service from one or more authorities and the combined share of it covers at least half of the costs of development work or maintenance, the service falls within the scope of application of the Act on the Provision of Digital Services. In this case, the digital service in question must meet the accessibility requirements and have an accessibility statement and an online feedback channel.
If a service or a development project receives public funding that makes up at least half of the costs of the development project or annual maintenance, the actual service and the end result of the development work must be accessible. However, this obligation does not apply for years where the combined share of the public funding received for the maintenance of the service or the development projects is less than 50%. However, if non-accessible content is published in the service during this time, it is a good idea to mention it in the accessibility statement so that the users are also aware of the information.
Meeting the accessibility requirements should be included as an integral part of the project and it should be noted that shortcomings in accessibility which have been noticed later should also be rectified in regard to publicly funded development projects.
The change in funding allocated for the organisation or its digital services may lead to cases in which the digital service is subject to accessibility requirements in some years and not in others. However, even in such cases, the “repair backlog” of shortcomings in accessibility should not be allowed to increase too much in the intermediate years, so that meeting the accessibility requirements does not become too burdensome when the service returns to the scope of the obligations laid down in the Act on the Provision of Digital Services.
It should also be noted that many organisations receiving general grants are considered institutions governed by public law and are therefore already in the scope of accessibility requirements.
Part of the private sector is subject to the requirements
The national law in Finland obliges a broader group of organisations than the EU Accessibility Directive, which defines the minimum level of obligation at public sector actors. In other words, the accessibility requirements in Finland also extend to a part of the private sector:
- banks, credit institutions and investment firms, i.e. actors in the financial sector
- insurance companies and insurance associations
In addition, the following actors, irrespective of their legal form, when an authority has a clear influence in their activities:
- water and energy service providers
- transport service providers
- postal service providers
Accessibility requirements therefore apply to websites and mobile applications of companies operating in these sectors.
In addition, the accessibility requirements apply to strong electronic identification services, such as online banking codes used by banks to identify users on their websites.