Third party content comes in all shapes and sizes. This could be documents which you are required to publish on your website in a certain template by law, comments from members of the public on ‘forum’ areas, or a wide range of other content.

When considering whether third-party produced content is in scope or out of scope of the regulations, we consider 5 key questions to understand whether as a public sector body you would have had any opportunity to affect the level of accessibility of that third-party content.

“third-party content that is neither funded nor developed by, nor under the control of, the public sector body;”

Under the Public Sector Bodies (Websites and Mobile Applications) Accessibility Regulations 2018 there are exemptions for some types of 3rd party content. Because of the range of relationships, a public sector organisation can have with 3rd parties applying this exemption must be treated on a case-by-case basis. This article talks through our methodology for considering our responsibilities for 3rd party platforms and content.

Because the regulations only provide the one line for the description of 3rd party content, we have tried to consider how this can be thought about for real world situations.

The underpinning principle when we consider whether an organisation may have responsibility for 3rd party content is asking whether at any point did the organisation have a chance to make the result more accessible. If it could be reasonably assumed that the organisation had chances to make the outcomes more accessible, then there will be some levels of responsibility.

The 5 questions

The questions we ask ourselves when considering responsibility are as follows. It is always best to consider the answers to all five questions together before you have your answer.

1. Is the content bespoke for you?

This is probably the easiest of the five questions because it is either, yes responsible or no, answer more questions.

The argument goes that if you as an organisation are having a 3rd party make you content bespoke for you, then you have a responsibility to require accessibility standards in your brief.

If you commission the development of content and do not require accessibility, then you hold responsibility for any issues because you had the opportunity to demand accessibility from the outset.

This question comes up a lot when we are having discussions about accessibility in procurement and including accessibility in supplier contracts

2. Is the content hosted by you?

This question has some nuance to it and is affected by the answers to the other questions. Not only if you are hosting the 3rd party content directly, but also if 3rd party content might be considered to be yours by an end user.

For example, if you are using a 3rd party forms package which is integrated with other parts of a user journey so it all looks like parts of your organisations controlled environment, then while it is 3rd party software, it is seen by end users as “yours”.

The key with this one is whether it could be reasonable assumed by end users that the 3rd party content is part of your organisations ownership and it would be expected by those users that you have some control over it.

3. Are there alternative options?

This question is about due diligence and knowing the market.

The argument is that if there are alternatives or competitors out there, if you chose an inaccessible product, that was your choice and could leave you with some responsibility.

Sometimes, markets will be small, there might be only 2 or 3 options out there and all of them have some level of accessibility problems. In any situation it is important to show that you have completed some due diligence to find out what issues each option has and pick the best one (even if that is not fully accessible but is the most accessible option available).

4. Is there other legal or statutory pressure?

Sometimes accessibility requirements conflict with requirements of other legislation.

We see this from time to time for example where local authorities may be required to publish documents or forms in an inaccessible format, but cannot improve the forms because they are mandated in that way by a higher authority or are set by other legislation. In these cases it may not be your responsibility to fix the issues but you should take what actions you can to mitigate the impacts of those risks.

5. Did you pay for it?

This question relates directly back to the regulations. If you are paying for it then generally that is a clear indication that you have some responsibility for it.

There are some exemptions, for example if you are paying for something but there are no alternatives and/or you are forced (legally) to use a service that still requires your payment, then you may not hold responsibility there.

Questions Flow

We have put together a flow diagram which helps us to work through the questions and get a general idea of responsibility.

The flow diagram covers the following 8 journeys:

1. Is the content bespoke for you? Yes, you are responsible

2. Is the content bespoke for you? No, next question

   • Is it hosted by you? Yes, next question
   • Are there alternatives? Yes, you are responsible

3. Is the content bespoke for you? No, next question

   • Is it hosted by you? Yes, next question
   • Are there alternatives? No, next question
   • Is there statutory pressure? No, you are responsible

4. Is the content bespoke for you? No, next question

   • Is it hosted by you? Yes, next question
   • Are there alternatives? No, next question
   • Is there statutory pressure? Yes, you are not responsible

5. Is the content bespoke for you? No, next question

   • Is it hosted by you? No, next question
   • Are there alternatives? No, you are not responsible

6. Is the content bespoke for you? No, next question

   • Is it hosted by you? No, next question
   • Are there alternatives? Yes, next question
   • Is there statutory pressure? Yes, you are responsible

7. Is the content bespoke for you? No, next question

   • Is it hosted by you? No, next question
   • Are there alternatives? Yes, next question
   • Is there statutory pressure? No, next question
   • Did you pay for it? Yes, you are responsible

8. Is the content bespoke for you? No, next question

   • Is it hosted by you? No, next question
   • Are there alternatives? Yes, next question
   • Is there statutory pressure? No, next question
   • Did you pay for it? No, you are not responsible

Alternatively, if you want the options presented as a matrix with some example text for options, you can download the responsibilities matrix.

There are a variety of types of 3rd party content. Below are a number of common examples:

Public forum content

Quite often you may have somewhere for people to submit comments about articles, or policies etc.

Forum administration can be a full-time job and it is not really expected that you should be held responsible for the accessibility of every comment that someone might submit on your platform. Often there are controls in place to limit what people can post, such as text only comments to avoid gifs or images, and there are still requirements about moderation for example removing illegal comments or hate speech etc. which would be handled under other requirements.

Publicly submitted documents – planning applications

Likewise, with publicly submitted content like planning documentation, it may not be your responsibility as you do not have control over every submission but there are mitigation actions you can take to try and reduce issues.

For example, you could make improvements to templates you expect 3rd parties to use as part of their submission, you could improve your guidance to those parties to encourage more accessible documents, and you could make clear the support routes for users that do require alternative formats or reasonable adjustments so if you do need to fix individual documents, that process can be easier for requesters.

A 3rd party off the shelf platform no customisation

A common situation for many organisations. You will be buying either implementations of a 3rd party product, or access to the 3rd party system. In this scenario, the questions about paying for services and whether there are alternatives become important.

The responsibility may not fall completely on your organisation but may lie in the negotiation you have with a chosen supplier.

• Were there any other options to choose from?
• Were they the most accessible out of the other options? (balanced against other business considerations).
• What evidence does the supplier have for accessibility testing?
• What are they doing about accessibility improvements to their platform over the period you have a contract with them?
• What have you agreed with them for when issues are found? Will they fix issues reported by users as a priority?

A purpose built bespoke platform

Quite a straightforward example in this case. You have commissioned a purpose built website for your organisation. The 3rd party is doing the creation but you are paying for the development, will own the website at the end, and they are building it to your specification. You would have responsibility to ensure that you request accessibility requirements be met right from the very beginning.

This should be checked at every stage of design, development, deployment and you should have a plan for ongoing support.

3rd party advertisements

3rd party advertisements are a tricky one. Discussions and guidance from the monitoring body previous have indicated that because the content of the adverts are not funded nor developed by, nor under the control of organisations, in this case lets say a local council, that they are out of scope of the regulations which is quite clear.

Moving slightly away from the main point of the article, we believe that even if they are outside the scope of the regulations there are reasons why you should avoid 3rd party advertisements as a public sector body.

• They are non-essential therefore we would argue that organisations do have control over the adverts, as the organisation chooses to embed the advertisements onto their website and could chose not to include that inaccessible content without detriment.

• There are options for whether an organisation has some control over what adverts are shown or not.

  • If an organisation does have some say on what content is shown, such as a local council limiting adverts that can be shown on their website to vetted or approved topics, then again, it could be argued that they have some control over the content that is eventually shown on their website.
  • If the organisation does not have any say over what adverts are presented on their website, then they run separate significant risks because of the unmanaged content. For example, a council may rightly want to avoid adverts for scams or other dubious content. Not only does that pose a risk to their users but to the council’s reputation. It could be assumed that a member of the public could assign more trust to an advert on a public sector website by associating it with the public sector body, or assuming endorsement and then take issue with the public sector body for being the conduit to that content.