A EUROPEAN VIEW TOWARDS THE LEGAL RECOGNITION OF ELECTRONIC SIGNATURES IN NORWAY : A comparison between Art. 5 Electronic Signatures Directive and Section 6 Electronic Signatures Act in Norway

Abstract

The thesis is comparing the legal recognition of electronic signatures in Norway and the European Union. For the European Union the legal recognition of electronic signatures is regulated in Art. 5 Electronic Signatures Directive (ESD), Norway regulated the legal recognition of electronic signatures in Section 6 Electronic Signatures Act (ESA). This thesis asks the question if the Section 6 Norwegian ESA implements Art. 5 ESD correctly because there are some differences between Section 6 ESA and Art. 5 ESD. They will be discussed in this thesis under the focus of whether Section 6 ESA complies with Art. 5 ESD or not. Both regulation are compared by their legal and technological requirements. To discuss the implementation thorough not only the two regulations have to be compared because some requirements of both regulations are defined in other regulations. In the first four chapters the very similar requirements for both laws will be described and compared. Beneath a general chapter the technological requirements of Art. 5 I ESD and Section 6 ESA will be discussed in one chapter. Although some of these requirements such as advanced electronic signatures, qualified certificates, certification service providers and secure-signature-creation devices are regulated in other provisions, it is necessary to compare them as well. If they do not resemble the technical background Art. 5 ESD and Section 6 ESA will not comply with each other. This can result in different sorts of electronic signatures Art. 5 ESD and Section 6 ESA affect. Then the consequences of the Norwegian implementation will be discussed under the focus of the EFTA-Court legislation. Because of some legislation of the EFTA-Court is based on decisions of the ECJ, the necessary ECJ-decisions will be discussed as well. Both laws take a so-called two-tier approach where a so-called minimalist approach and a so-called prescriptive approach are combined. The minimalist approach give a minimum legal recognition to a form of electronic signatures and the prescriptive approach describes the functions of a certain technology. The differences between both Regulations are sometimes obvious, seem sometimes obvious or are hidden. The most obvious difference is that Art. 5 II ESD and Section 6 Sentence 2 ESA seem to be two different regulations. The first is a non-discrimination rule and the second is a broad guideline what legal recognition an electronic signature according to the definitions in Art. 2 a) ESD and Art. 3 1. ESA. Although the Norwegian law implements the non-discrimination rule by using general principles of law. For example hinders the principle of free giving of evidence that an electronic signature is not admissible as evidence. But the principle of free consideration of evidence do not hinder that a judge denies a legal effect to an electronic signature with the general argumentation that the electronic signature is electronic or does not fulfil the requirements of a qualified signature. The non-implementation of letter l) Annex II ESD is more difficult to find, but it changes the requirements towards the technology and is therefore not complying with European Law. The consequences for the incorrect implementation has to be based on the judgements of the EFTA-Court. The EFTA-Court has developed a state liablility based on the EEA-Agreement and takes over the requirements the ECJ has developed for state liability. According to these requirements the incorrect implementation must the Directive aim to give a subject individual rights, there is an incorrect implementation which is sufficient serious and the breach of EU/EEA Law causes a loss of an action. The Directive gives a subject an individual right to use an electronic signature to gain a certain legal effect. The incorrect implemention is sufficiently serious because the possibility to reject a legal effect to an electronic signature build different requirements towards the legal recognition of electronic signatures. This hinders the establishment of an internal market. The third requirement is not fulfilled yet and therefore the Norwegian State will not be hold liable for that incorrect implementation.