eSignature Legality in Norway

E-Signature Legality Summary

Norway is one of the Member States of the European Free Trade Association (EFTA) and not the European Union (EU). However, through the European Economic Area (EEA) agreement, several of the EU directives and regulations are incorporated into the EFTA states. This includes 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 and repealing Directive 1999/93/EC, also known as the eIDAS Regulation which are applicable in Norway. 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/EEA, including Norway, and is implemented through the Act on Electronic Trust Services (LOV-2018-06-15-44). 

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 electronic signatures and what is considered qualified electronic signatures under the eIDAS Regulation) were valid prior to the eIDAS Regulation pursuant to the principles of freedom of contract and freedom of evidence.

Notable Changes in E-Signature Law Since 2020

The new Financial Contracts Act (LOV-2020-12-18-146) entered into effect on 1 January 2023. The law allows for the use of electronic signatures, and the preparatory works (Prop. 92 LS (2019-2020) clarifies that "in writing" refers to nothing other than the use of written characters, and that when the law requires a written "document," both paper and another durable medium can be used. This means that contracts of suretyship can also be entered into electronically. The ban on electronic signing in the old Financial Agreements Act section 61 is abolished, thereby allowing the documents to now be signed by electronic signature.

The Financial Contracts Act also introduces a separate provision regarding burden of proof for financial agreements entered into using electronic signatures. The first paragraph of Section 3-6 stipulates that, if a person who has the right to use an electronic signature denies having consented to the conclusion of an agreement electronically or claims that the agreement was not validly concluded, the service provider has the burden of proof that the conclusion of the agreement was authenticated, correct validated, registered, and was not affected by technical failure or other errors related to the conclusion of the agreement. 

If a qualified validation service has been used for qualified electronic signatures, the qualified provider of the trust service has, within the scope of his area of ​​responsibility, the burden of proof that the qualified electronic signature has been correctly validated in accordance with the requirements in the EU Regulation No. 910/2014 and not affected by technical failure or other errors related to the trust service for which he is responsible.

Moreover, the use of an electronic signature alone is not sufficient to prove that it was the owner of the signing mechanism that did the signing, consented to the signing, or acted with intent or gross negligence to enable an imposter to sign.

The Financial Contracts Act also introduces a cap on the user’s responsibility in cases of misuse of electronic IDs. According to the second paragraph of section 3-20, the holder of an electronic ID will be responsible, even in the case of gross negligence, only for an amount of 12,000 NOK if the electronic ID is used by an imposter to sign an agreement. This cap does not, however, apply if the holder of the electronic ID has acted willfully in breach of his obligations according to section 3-19, in a manner in which he had to understand that the breach could entail an imminent danger that the electronic signature creation data could be misused.

There have also been some other minor changes in e-signature law since 2020, specifically changes which explicitly state that electronic signatures are equal to written signatures. A change to the Property Unit Ownership Act (LOV-2017-06-16-65) section 53 entered into effect on 1 April 2021, in which “underskrive” was changed to “signere” in order to clarify that an electronic signature is equivalent to a handwritten signature.

Types of Permitted Electronic Signature

The eIDAS Regulation defines an electronic signature generally as  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.  The eIDAS Regulation makes a distinction between three types of electronic signatures: a "simple" electronic signature, an "advanced electronic signature," and a "qualified electronic signature."

• A "simple" electronic signature is a type of electronic signature that does not meet the definition requirements for higher levels of electronic signature, i.e., "advanced" or "qualified." Thus, typing one´s name at the bottom of an email might constitute a simple electronic signature.

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

• A “qualified electronic signature” means an advanced electronic signature that is created by a qualified electronic signature creation device, and which is based on a qualified certificate for digital 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 states that an electronic signature can meet all 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

• High Tech

• 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.

• Subject to the Enforcement Act (LOV-1992-06-26-86) section 7-2 litra a, a certificate of debt may only be used as a basis for enforcement against the issuer when the signature is in writing and confirmed by two competent witnesses. The Supreme Court has held in HR-2010-835-U that the signature cannot be electronic but must be in writing. However, according to section 7-2 litra g, this requirement does not apply to certificates of debt issued to a financial undertaking, which can be issued electronically.  

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, and that the document which shall be signed can be uploaded and is readable.

Enforcement Penalties for Non-Compliance

There are no stated penalties for non-compliance in the law. However, failing to comply may result in the electronically signed documents not being enforced and/or may result in penalties under the laws applicable to the underlying transaction. 

Seminal 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.

• Møller Bilfinans AS v. A, Norwegian Supreme Court, May 2010 HR-2010-835-U

Publicly Accessible Hyperlink(s) to Laws/Regulations Discussed Above 

• the eIDAS Regulation No. 910/2014

• Act on Electronic Trust Services (LOV-2018-06-15-44)

• FOR-2019-11-21-1577

• Regulation on Anti-Money Laundering (FOR-2018-09-14-1324)

• Financial Contracts Act (LOV-2020-12-18-146)

• Enforcement Act (LOV-1992-06-26-86)