Digital transformation: the risks of providing non-digitally accessible products in the EU and UK

June 21, 2024

A team from Hogan Lovells consider the regulatory regimes governing digital accessibility in the UK and EU.

Summary: In the era of digital transformation, the need to ensure products and services are accessible to all, including those who experience some form of disability, is greater than ever. While there is not (yet) a global uniform approach to governing the digital accessibility requirements of products and services, certain countries have developed fairly articulate and progressive legal frameworks in this respect. Even in countries where such legislation does not yet exist, consumer expectations have grown, leading to products and services that do offer accessibility features having a unique selling point over those that do not. As a result, potential risks have developed for economic operators who make available non-digitally accessible products and services. With digital accessibility at the forefront of the minds of legislators, regulators and consumers alike, such risks are only expected to increase as time goes by. Companies should therefore start considering how to safeguard themselves accordingly now – putting digital accessibility front and centre of all they do.

At its core, digital accessibility aims to ensure that digital products and services are accessible to all, including those who experience physical, hearing, vision, speech or physical disabilities. Whether driven by government policy, regulatory frameworks, consumer expectations, or even a company’s own drive to “do better”, digital accessibility aims to guarantee non-discriminating user experience at a visual, auditory, motor and cognitive level.

Although there is not (yet) a global uniform approach to the governance of digitally accessible products and services, certain countries have developed fairly articulate and progressive legal frameworks in this respect. These countries are most notably within the European Union, take for example Italy, which now has an array of digital accessibility-focused regulations to consider. On the other hand, countries like the United Kingdom have taken a more “light touch” approach, focusing instead on industry self-regulation.

The legal framework at a glance
  • Both Italy and the UK are signatories to the UN Convention on the Rights of Persons with Disabilities. The Convention is the first international, legally binding instrument setting minimum standards for the rights of people with disabilities. It broadly categorizes the term “persons with disabilities” and reaffirms that all persons with all types of disabilities have a right to enjoy all human rights and fundamental freedoms. In addition, it identifies areas where adaptations must be made for persons with disabilities to allow them to effectively exercise their rights, which is something that is further reflected within the EU’s 2021 – 2030 Strategy for the rights of persons with disabilities.
  • There is also specific EU-level legislation at play. The key EU-level laws that introduce some form of digital accessibility governance currently include:
    • The Web Accessibility Directive : which aims to provide people with disabilities1 with better access to the websites and mobile applications of public services. To do so, the WAD, which has been implemented in Italy by the “Stanca Law2 and is also retained legislation in the UK3, introduces a duty for public sector bodies to make their websites and apps accessible by reference to specific standards, notably harmonised standard “EN 301 549 V3.2.1 (2021-03) Accessibility requirements for ICT products and services”, which is in line with the most recent Web Content Accessibility Guidelines: WCAG 2.1.
    • The Audiovisual Media Services Directive , the European Electronics Communications Code and the Citizens’ Rights Directive: which have all been implemented in Italy and are also retained legislation in the UK4, provide for certain accessibility requirements applicable to audiovisual media (i.e. traditional TV broadcasts, on-demand services as well as video-sharing platforms) and the broader telecoms framework.
    • And perhaps most crucially, the European Accessibility Act: which was introduced in April 2019 to harmonise legislation and set new EU-wide minimum accessibility requirements for certain products and services. The EAA, which has been implemented in Italy5 but, as a result of Brexit, has not been adopted in the UK, focuses specifically on enhancing the accessibility of digital products and services for people with disabilities or other functional limitations, such as the elderly.

Using this legislation, one of the driving messages EU legislature have attempted to deliver to economic operators that manufacture digital products or provide digital services is that the starting point is accessible design. Although, as briefly outlined above, EU legislation on digital accessibility has so far has been patchy, limiting its scope to e.g. public sector services or covering only specific categories such as electronic communications or audio media services, thinking about accessibility from the outset is something that is a clear expectation under the EAA, which is set to fill the gap and cover all aspects of making products and services accessible in a consistent manner across the EU Member States.

To do so, the EAA, which will enter into force on 28 June 2025, focuses on digital products and services (e.g. computers and operating systems, ATMs, banking services, e-books, e-commerce and smartphones, to name just a few!) with the aim of improving the accessibility of technologies for persons with disabilities or functional limitations. In an EU first, the EAA sets out various requirements, including that economic operators must only place products and only provide services on the EU market that comply with specific accessibility requirements set out in Annex I of the EAA, and that consumers must be provided with certain accessibility information. The EAA will therefore require certain hardware (e.g. smartphones and computers) and software (e.g. audio-visual media services apps) to be accessible by design, with its requirements applicable to both public and private entities supplying in-scope products and services in the EU, regardless of their size (except for microenterprises).

Although the EAA is not applicable in the UK as it was enacted after Brexit, that does not mean that digital accessibility can simply be ignored when supplying digital products and services on the UK market. This is because the UK does have legislation that is wide enough to be interpreted as introducing accessibility requirements for digital products and services, namely the Equality Act 2010, which requires service providers to make “reasonable adjustments” for people with disabilities both online and offline. This obligation requires such providers to proactively anticipate the needs of disabled persons, including by providing information in accessible formats.  

It is against this backdrop that economic operators across the EU and UK should be alive to the potential risks that making available non-accessible products and services may entail, including the risk of not telling consumers just how non-digitally accessible their products or services are.

Providing non-digitally accessible products and services – what are the risks?

It should have become clear by now that accessibility, and specifically digital accessibility, has become a key agenda item for governments across the globe, and most notably in the EU, a scenario that won’t likely change in the foreseeable future. As such, in-scope economic operators need to not only be aware of how to comply with their explicit digital accessibility-related obligations (as outlined in, among others, the legislation noted above), but also the more indirect obligations that may now arise.

One example of such ‘indirect’ obligation relates to the provision of information as to the digital accessibility features of an economic operator’s products and/or services. Omitting to include what could be considered to be ‘material’ information of a product or service (i.e. its (non) digital accessibility capabilities), regardless of whether such product or service is in scope of specific digital accessibility legislation (such as the EAA), could lead to a consumer with a disability purchasing a particular digital product or service only to later discover that it is not accessible and, thus, not usable by that particular user. In turn, this may lead to consumer complaints or claims (under digital accessibility legislation, or more widely, under general consumer law), as well as potential enforcement action, with the relevant regulatory authorities possibly deeming such practices as misleading or unfair to consumers.

In Italy, not including an indication that a product or a service is not accessible, thus indirectly inducing a consumer with a disability to make a commercial decision that they would not otherwise have taken, could be construed as a misleading commercial practice in violation of the Italian Consumer Code.6 Article 20, par. 3 of the Italian Consumer Code takes this point further, governing the scenario where a commercial practice – while reaching many groups of consumers – distorts the economic behaviour of only one group of consumers who are particularly vulnerable on account of, inter alia, their mental or physical disability. In such scenario, the “average consumer“, through the lens of which the unfairness of the practice itself is to be assessed, will be the average consumer with a disability.

Once an unfair commercial practice has been established, the Italian Antitrust Authority (“Autorità Garante della Concorrenza e del Mercato” may impose an administrative fine of up to EUR 10 million, taking into account the seriousness and duration of the violation and also the economic conditions of the operator.7 Additional legal risks also derive from the fact that persons with disabilities (including those represented by equal opportunity organisations or associations) are permitted to represent themselves in front of judicial authorities following discriminatory acts, even if such act was ‘indirect’ – i.e. when “apparently neutral conduct [such as the omission of information on e.g. the digital accessibility features of a product or service, even if not explicitly required by any law] puts a person with a disability at a disadvantage compared to other persons“.8 Such court proceedings (similarly as proceedings before the AGCM) not only carry with them legal risks for a company, but may also generate considerable media coverage that can damage a company’s reputation and irreparably undermine consumer trust.

In the UK, although digital accessibility is a key item on the UK Government’s agenda (reflected in its National Disability Strategy and the Disability Action Plan for 2024), specific accessibility requirements for products and services are not yet at play (and it looks to remain this way for the near future). As a result, while similarly to Italy, failure to provide consumers with the material information they need to make informed purchasing decisions may be deemed an unfair commercial practice9, the more prominent risks in the UK are likely to stem from economic operators claiming that their products and services are accessible without that being the case (e.g. risk of making a misleading claim that may influence a consumer to make a transactional decision they would not have made otherwise), and less so from failing to state that their products or services are not accessible.

That said, increased risks in this regard are likely to arise later down the line, especially once the EAA comes into effect. This is because looking to what must be offered to EU consumers (i.e. digitally accessible products and services from 2025), UK consumers may well begin to expect “more” from their products and services, even if this is not explicitly required by UK legislation. As a result, scenarios can easily be envisaged where current UK legislation begins to be interpreted in creative ways by consumers, consumer groups, or even regulators in order to bring claims and actions against economic operators for making available non-digitally accessible products and/or services on the UK market.

For example, arguments may develop that a failure to state that a product or service is not accessible should be construed as a misleading omission, given this should (now) be considered as an ‘essential characteristic / restriction’ of a product or service. Alternatively, the requirements of the Equality Act could be interpreted in new, all-encompassing ways which require product manufacturers and service providers to do “more” to make their products and services accessible to all (with ‘reasonable adjustments’ potentially being interpreted as having a wider meaning than ever before). While this may seem theoretical, the same was initially said for greenwashing claims, but one only needs to look at the headlines nowadays to see the expansion of claims in this arena despite there being no specific laws in the UK governing green claims, showcasing how the interpretation of ‘old’ legislation can be widened to fit with the times.

The direction of travel and how to safeguard?

While it is correct that digital accessibility legislation, where this does exist, is far from mature and that – even with the entering into force of the EAA – there will be no general obligation for economic operators to market only digitally accessible products and services in the EU, it is also correct that explicit digital accessibility requirements are on the rise. This, in turn, increases the risks surrounding non-digitally accessible products and services, regardless of whether or not they are within the scope of such legislation, particularly when taking into account ever-growing consumer (and regulator) expectations. Further, these risks are in no way limited to potential claims before the courts or potential proceedings by regulatory authorities either, and it is likely that businesses will begin to receive consumer complaints, bad media coverage and general reputational damage for failing to provide accessible products and services, or at least for failing to notifying consumers that the product or service in question is not accessible.

In light of these risks, economic operators are strongly recommended to take a proactive approach to digital accessibility at all stages of the lifecycle, i.e. by implementing inclusive design processes when developing their products and services, all the way through to training their staff on accessibility best practices. Taking this a step further, companies should also carefully begin to consider how best to communicate the possible lack of accessibility of their digital product or service, for example, by way of explicit on-the-label information or via the use of pragmatic alternative solutions (e.g. webpages and/or QR codes). Such transparency and clarity in consumer communication will likely go a long way in demonstrating a real respect for the rights of people with disabilities.

To put it simply: this is a last call to economic operators dealing with digital products and services, with digital accessibility no longer being a “nice to have” but slowly becoming a non-negotiable endgame destination. The time to act is now.

Christian Di MauroValerie KenyonVicki KoonerLorena Baltazar, and Guido Di Stefano from Hogan Lovells. This article was first published on the Hogan Lovells Engage portal and is reproduced with permission

  1. WAD is stated to be, in particular, for “persons with disabilities”, which it defines in accordance with the UN Convention as those people having “long-term physical, mental, intellectual or sensory impairments which may, in conjunction with other barriers, hinder their full and effective participation in social on an equal basis with others’’. It does not specify any particular types of disability. ↩︎
  2. Law no. 4/2004, as amended. ↩︎
  3. The Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018. ↩︎
  4. The Audiovisual Media Services Regulations 2020 (“AVMS Regulations”), implementing the Audiovisual Media Services Directive (’’AVMSD’’), the Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 (“ECWT Regulations”), implementing Directive (EU) 2018/1972 establishing the European Electronic Communications Code (“EECC”), and the Communications Act 2003 (“Communications Act”). ↩︎
  5. Legislative Decree of 27 May 2022, no. 82, as amended by Law of 10 August 2023, no. 103. ↩︎
  6. Under Article 22 of the Italian Consumer Code, a misleading commercial practice is defined as the conduct of a person who: (i) omits, or presents in an obscure or untimely manner, material information that the average consumer needs in order to make an informed commercial decision; or who (ii) induces the average consumer to make a commercial decision that he or she would not otherwise have taken. ↩︎
  7. Article 27, par. 9 of the Italian Consumer Code. ↩︎
  8. Law No. 67 of 1 March 2006, see Article 2, para. 3. ↩︎
  9. The Consumer Protection from Unfair Trading Regulations 2008, see Regulations 3, 5 and 6. ↩︎