eSignature Legality Guide

The Financial Contracts Act (LOV-2020-12-18-146) came into force on 1 January 2023. This law permits the use of electronic signatures, and its preparatory works (Prop. 92 LS (2019-2020)) clarify that "in writing" simply means using written characters, and that a "document" can be on paper or any other durable medium. As a result, suretyship contracts can now be concluded electronically. The previous prohibition on electronic signatures in section 61 of the old Financial Agreements Act has been removed, so these documents can now be signed electronically.

The Act also introduces a specific rule on the burden of proof for financial agreements signed electronically. Section 3-6, first paragraph, states that if a person entitled to use an electronic signature denies having agreed to an electronic contract or claims the contract was not validly concluded, the service provider must prove that the agreement was authenticated, properly validated, registered, and not affected by technical errors or failures.

If a qualified validation service is used for qualified electronic signatures, the qualified trust service provider is responsible for proving that the qualified electronic signature was correctly validated according to the requirements of EU Regulation No. 910/2014 and was not affected by technical errors or failures related to the trust service.

It is also important to note that simply using an electronic signature does not in itself prove that the owner of the signing tool actually signed, gave consent, or acted intentionally or with gross negligence to allow someone else to sign.

The Act also sets a limit on user liability in cases of misuse of electronic IDs. According to section 3-20, second paragraph, the holder of an electronic ID is liable, even in cases of gross negligence, only up to 12,000 NOK if an imposter uses the electronic ID to sign an agreement. This cap does not apply if the holder has intentionally breached obligations under section 3-19 in a way that they should have understood could lead to misuse of the signature creation data.

Other minor amendments to e-signature law since 2020 include clarifications that electronic signatures are equivalent to handwritten signatures. For example, a change to section 53 of the Property Unit Ownership Act (LOV-2017-06-16-65), effective 1 April 2021, replaced “underskrive” with “signere” to make clear that electronic signatures are treated the same as handwritten ones.

ESIGN and UETA define an electronic signature as “any electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.”

Under the eIDAS Regulation, an electronic signature is defined as data in electronic form that is attached to or logically associated with other electronic data and used by the signatory to sign. The eIDAS Regulation distinguishes between three types of electronic signatures: "simple" electronic signatures, "advanced electronic signatures," and "qualified electronic signatures."

• A "simple" electronic signature is any electronic signature that does not meet the requirements for advanced or qualified signatures. For example, typing your name at the end of an email may be considered a simple electronic signature.
• An “advanced electronic signature” is an electronic signature that fulfills additional requirements to provide a higher level of trust.
• A “qualified electronic signature” is an advanced electronic signature created by a qualified electronic signature creation device and based on a qualified certificate for digital signatures (Article 3.12 eIDAS). The certificate must be issued by a trust service provider listed as qualified in an EU member state, and the signature creation device must be certified by an EU member state. Only a “qualified electronic signature” has special legal status in EU member states, being recognized as equivalent to a handwritten signature (Article 25.2 eIDAS).

According to Norwegian law and 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 the person signing it." The concept is technology-neutral. The preparatory works also state that an electronic signature can fulfill all legal requirements for a signed document and helps prove the document’s origin and integrity.

The following types of documents generally do not have specific formal requirements under Norwegian law, so any electronic signature that meets the above definitions 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.

While there are no general restrictions on the use of electronic signatures, some specific limitations apply:

• Entities subject to the Money Laundering Act must, as a rule, verify a customer’s identity in person with valid ID. However, the anti-money laundering regulation (FOR-2018-09-14-1324) section 4-3 (4) allows an electronic signature to serve as valid identification for a natural person when in-person verification is not required.
• For real estate, deeds of conveyance generally must be filed physically with a handwritten signature. However, an exception exists for professionals registered with the Norwegian Mapping Authority (Kartverket). Most real estate transactions in Norway are handled by registered real estate agents, so in practice, most deeds are filed electronically with an electronic signature.
• Under the Enforcement Act (LOV-1992-06-26-86) section 7-2 litra a, a certificate of debt can only be used for enforcement against the issuer if the signature is handwritten and confirmed by two competent witnesses. The Supreme Court (HR-2010-835-U) has ruled that such signatures cannot be electronic. However, section 7-2 litra g provides that this requirement does not apply to certificates of debt issued to a financial institution, which may be signed electronically.

Electronic signatures are legally equivalent to handwritten signatures and are admissible as evidence in court. To ensure enforceability, it is important to provide sufficient authentication and to make sure the signed document can be uploaded and is readable.

The law does not specify penalties for non-compliance. However, failure to comply may result in electronically signed documents not being enforceable and/or may lead to penalties under the laws governing the underlying transaction.

The following case illustrates how the Public Transportation Complaint Handling Body—a government-appointed body whose decisions are advisory and not binding—has indirectly 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