eSignature Legality in Norway

E-Signature Legality Summary

As Norway is one of the Member States of the European Union (EU), the provisions of the EU Regulation No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market (the eIDAS Regulation) govern and are directly applicable in Norway. The eIDAS Regulation repeals Directive 1999/93/EC.

This Regulation, in its Chapter 3 “Trust Services” and under Section 4 “Electronic Signatures,” governs the use of electronic and digital signatures in the whole EU, including Norway.

Moreover, there are additional Norwegian Regulations (e.g., FOR-2019-11-21-1577) that transpose the European Commission’s implementing acts under the eIDAS Regulation. However, they do not have any additional effect on the legality/validity of electronic signatures as such. Electronic signatures (both simple and advanced electronic signatures and what is considered a qualified electronic signature under the eIDAS regulation) were valid prior to the eIDAS regulation pursuant to the principles of freedom of contract and freedom of evidence.

Types of Electronic Signature

eIDAS makes a distinction between three types of electronic signatures: a simple “electronic signature”, an “advanced electronic signature” (AES), and a “qualified electronic signature” (QES).

A simple “electronic signature” means data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign (Article 3.10 eIDAS).

An “advanced electronic signature” (AES) is an electronic signature that meets some additional requirements so that a higher level of trustworthiness can be met.

A “qualified electronic signature” (QES) or “digital” signature means an advanced electronic signature that is created by a qualified electronic signature creation device, and which is based on a qualified digital certificate for electronic signatures (Article 3.12 eIDAS). This certificate must be issued by a trust service provider that is on a trusted list of qualified trust service providers of an EU member state and the qualified electronic signature creation device must be certified by an EU member state. A “qualified electronic signature” is the only electronic signature level to have special legal status in EU member states, being legally recognized as the equivalent of a written signature (Article 25.2 eIDAS).

Under Norwegian law, in the preparatory works of LOV-2018-06-15-44 (Prop. 71 LS (2017–2018)), electronic signatures are described as "mechanisms that link a document to a person who signs the document." The concept is technology-neutral. Further, the preparatory works state that an electronic signature can meet legal requirements for a document to be signed and helps to prove the origin and integrity of a document.

Documents That May be Signed Electronically

The following categories typically do not have specific formal requirements under Norwegian law; therefore, any form of electronic signature that meets the definitions above may be used:

• HR

• Procurement

• Corporate Resolutions

• NDAs

• Software Licensing

• Healthcare

• Banking

• Lending

• Chattel Paper

• Insurance

• Education

• Life Sciences

• Technology sector

• Documents to Notarized

• Real Estate

• Documents to be Recorded

• Consumer Transactions

• Government Filings

Further Guidance

There are no general restrictions for the use of electronic signatures, however, there are some specific restrictions:

• Undertakings subject to reporting under the Money Laundering Act shall, as a starting point, obtain and confirm the customer's identity by appearing in person and presenting valid identification. The regulation on anti-money laundering (FOR-2018-09-14-1324) section 4-3 (4) states that an electronic signature is valid identification for the natural person when the identity is not to be confirmed in person.

• In terms of real estate, a deed of conveyance must as a point of departure be filed physically, with a written signature. However, there is an exception for professional actors which are registered with the Norwegian Mapping Authority (Kartverket). Nearly all real estate transactions in Norway are completed with the help of a real estate agent who is registered. Therefore, most deeds of conveyance are in practice filed electronically with an electronic signature.

Electronic signatures have the same legal effect and admissibility as evidence in legal proceedings as ordinary signatures. However, to ensure the enforceability of an electronic signature, it is important to ensure adequate authentication, an audit trail of the transaction, a tamper-evident document and signature, and that the document which shall be signed can be uploaded and is readable.

Case Law

The following case is an example of where the Public Transportation Complaint Handling Body—a governmental appointed body whose decisions are advisory and not binding on parties—implicitly addressed the use of electronic signatures:

• Norwegian Air Shuttle v. Flyforsinkelse, Public Transportation Complaint Handling Body, December 2017.