§ 3-6. Who must prove that an electronically signed agreement is valid

This section shifts the burden of proof (the risk of having to prove something) to the service provider when a customer disputes an agreement entered into with an electronic signature. If the person who owns the signature denies having consented, or claims that the agreement was not validly entered into, the service provider must prove that the entering into the agreement was authenticated (identity checked), validated (signature checked as valid) and recorded correctly, and that no technical breakdown or other errors played a part.

The second subsection divides responsibility when a qualified validation service has been used. In that case, it is the qualified trust service provider who, within its own area of responsibility, must prove that the signature was correctly validated under the EU Regulation on electronic identification, and that no technical breakdown has affected it.

The third subsection prevents the use of the signature alone from deciding the case. The fact that the signature data was actually used is not in itself enough to prove that the signature holder consented, or that the signature holder acted fraudulently, intentionally or with gross negligence. If the service provider, or where relevant the qualified provider, wants to claim such conduct, it must present documentation. The fourth subsection gives consumers extra protection: to prove that a consumer has consented, or has fraudulently or intentionally breached the obligations in § 3-19, a qualified preponderance of probability must be reached (a stricter requirement than an ordinary preponderance).

This section is a special rule to the general rule on burden of proof in § 3-5, which places the burden of proof on the party best placed and with most reason to secure evidence. It has a sister rule in § 3-7 for payment transactions (betalingstransaksjoner), where the payment service provider (betalingstjenesteyter) must prove that the transaction was authenticated, correctly recorded and entered in the accounts and not affected by a technical breakdown. The terms signature holder and provider are defined in § 3-16, and the obligations the signature holder may have breached are set out in § 3-19. § 3-21 allows the signature holder's liability for the excess (egenandel) to be reduced. Among the neighbouring sections, § 3-9 provides that agreements are as a general rule entered into in writing, and § 3-2 concerns electronic messages.

Example: a customer claims that a loan application was never signed by her. The service provider cannot simply show that the signature was used. The service provider must document the whole chain from identification to recording, and the use of the signature alone does not prove that the customer consented.