FernUSG: Online-Lernformate & Coaching | IT-Medienrecht

The Initial Situation: Distance Learning Protection Act and Digital Business Models

The Distance Learning Protection Act (FernUSG) has recently seen a resurgence in relevance. What was long considered a niche issue for traditional distance learning is now central due to the digitalization of education, coaching, and mentoring services. The Federal Court of Justice's decision on June 12, 2025 (Ref. III ZR 109/24) placed significant pressure on the industry. Many online programs faced the risk of nullity under Section 7 (1) FernUSG if they lacked approval from the State Central Agency for Distance Learning (ZFU).

However, in its ruling of February 5, 2026 (case no. III ZR 137/25), the BGH introduced a crucial distinction. Synchronous, purely live online training courses, without recordings or asynchronous learning modules, are generally not covered by the FernUSG. This clarification holds substantial practical importance for providers of online training, coaching programs, and digital knowledge formats. This article systematically categorizes both BGH decisions, outlines the distinguishing criteria, and suggests structural and contractual adjustments for providers.

The Foundations: Distance Learning Protection Act and Digital Business Models

The FernUSG was introduced in 1976 to protect participants in distance learning courses from dubious providers. The central connecting factors are Section 1 (1) FernUSG and Section 7 FernUSG. A distance learning contract exists if:

• knowledge or skills are taught in return for payment,
• the teacher and learner are predominantly physically separated, and
• the learning success is monitored.

If distance learning falls within the meaning of this law, the offer requires approval by the ZFU. If this approval is missing, the contract is null and void. The legal consequences are drastic: fees already paid can regularly be reclaimed.

For decades, the application was relatively clear. It referred to traditional distance learning courses with course letters, submitted assignments, and corrected work. However, with the advent of digital learning platforms, video-on-demand content, group coaching via Zoom, and hybrid learning models, the classification became increasingly uncertain.

The First BGH Decision: III ZR 109/24 and its Impact

In its ruling of June 12, 2025 (case no. III ZR 109/24), the BGH dealt in depth with a modern online coaching model for the first time. The subject matter was a paid program combining digital content, retrievable modules, and accompanying support.

The BGH clarified that the FernUSG is not limited to traditional distance learning courses. The only decisive factor is whether the elements of Section 1 (1) FernUSG are fulfilled. In doing so, the Senate adopted a functional interpretation:

• Physical separation: This exists when teachers and learners do not physically meet in the same place. The use of digital means of communication does not fundamentally alter this. Even with video conferencing, a physical distance remains.
• Monitoring learning success: This does not only occur when formal examinations are conducted. Individualized feedback on tasks or a structured check on whether learning content has been understood and implemented is already sufficient.

Consequently, the BGH affirmed the applicability of the FernUSG to the online program in question. As there was no ZFU approval, it declared the contract null and void.

This decision was perceived as a sensation in practice. Numerous providers of online coaching, business mentoring, marketing programs, or personal development courses utilized mixed models of recorded content, group calls, and feedback loops. According to the logic of the decision, there was a considerable risk that such programs would be classified as distance learning requiring approval.

Criticism arose, particularly regarding the Federal Court of Justice's broad interpretation of physical separation. It was argued that the court did not sufficiently differentiate between the special features of synchronous online communication. Furthermore, the FernUSG originated at a time when interactive real-time communication via the internet did not exist. Transferring this historical protective concept to modern coaching models could therefore lead to a significant expansion of the law's scope.

The Second Decision: III ZR 137/25 and the Dogmatic Correction

In its ruling of February 5, 2026 (case no. III ZR 137/25), the BGH once again had the opportunity to deal with the FernUSG in the context of digital offerings. This case concerned a lawyer training course held exclusively synchronously online. Participants took part live via video conference, and there were no recordings, permanently accessible modules, or asynchronous learning phases.

The Senate took the opportunity to clarify the issues raised in the first decision. It emphasized that not every online event with physical distance automatically constitutes distance learning within the meaning of the FernUSG.

The decisive factor involves a normative interpretation of physical separation, considering the law's original meaning and purpose. The FernUSG was enacted in 1976. At that time, legislators envisioned typical distance learning courses, featuring written course notes, home self-study, delayed assignment submission, and postponed feedback. Participants were largely independent and in a structurally disadvantageous position.

In contrast, a synchronous live online event is qualitatively different. If teachers and learners can communicate with each other simultaneously, ask questions, react spontaneously, and discuss, the situation is more comparable to a face-to-face event than a traditional distance learning course. The mere physical distance is relativized by the immediate possibility of interaction.

The BGH emphasized that the characteristic of physical separation should be reduced teleologically if the interaction density corresponds to a face-to-face event. Pure live training via video conference, without recording and without asynchronous elements, therefore does not regularly fall under Section 1 (1) FernUSG.

This differentiation does not represent a departure from the first decision but rather a clarification. While case III ZR 109/24 involved a structured, predominantly asynchronous learning program with controlled tasks, case III ZR 137/25 concerned a purely real-time event.

The Central Demarcation: Synchronous Versus Asynchronous Learning

A clear line can be derived from both decisions. The structural design of the offering is decisive.

Distance learning requiring admission is particularly likely if:

• content can be made permanently available,
• participants work in self-study,
• tasks or projects are to be submitted,
• individual corrections or assessments are made,
• the learning success is systematically monitored.

The more a program relies on asynchronous modules and the more pronounced the individual performance monitoring, the more likely the FernUSG will apply.

In contrast, purely live formats without recordings and without self-study phases are generally not included. The decisive factor is that the knowledge transfer is exclusively synchronous, and there is no structural monitoring of learning success in the sense of a distance learning course.

However, caution is advised. The boundary is not formal but functional. Simply making a recording available for later viewing can alter the overall picture. A combination of live calls and mandatory homework with feedback can also change the classification.

Consequences for Coaching Providers and Digital Education Platforms

For providers of online coaching, business mentoring, IT training, or personal development, several areas require attention.

First, a thorough analysis of the business model is essential. It is not sufficient to describe the offer as “coaching” or “mastermind.” The actual structure is decisive. Does the program systematically impart knowledge or skills? Is learning progress monitored? Are there fixed curricula, modules, tests, or compulsory tasks?

Providers working with mixed models should check whether a clear separation is possible. One conceivable model is to offer pure live programs without recording as a separate product and to operate asynchronous self-study courses, possibly with ZFU approval.

The contractual structure is also key. Contracts should precisely describe the format, including the type of delivery, content availability, and the scope of feedback and performance monitoring. Unclear or contradictory provisions increase the risk of subsequent classification as distance learning.

The external image is also relevant. Anyone who advertises with guaranteed learning success, structured training programs, or certified qualifications creates an image more akin to a traditional distance learning course. Marketing and contract content must be consistent.

Historical Context and Teleological Interpretation of the Distance Learning Protection Act

The second decision of the BGH makes it clear that a purely literal interpretation of the FernUSG does not do justice to technological developments. The legislator in 1976 could not have anticipated internet streaming or interactive video conferencing. Its model was the isolated distance learner who received learning material by post.

The teleological reduction of the characteristic of geographical separation takes this into account. It prevents a boundless extension of the scope of application to all digital forms of communication. At the same time, the protective purpose remains intact: where participants are structurally bound in a self-learning setting with controlled progress, the Distance Learning Act continues to apply.

In practice, however, this does not mean that the all-clear has been given. Case law operates with evaluative criteria. Any deviation in the business model can lead to a different assessment.

Strategic Recommendations for Providers

Providers should review their programs in three steps:

1. Firstly, a legal qualification of the existing model must be carried out. All elements – live sessions, recordings, platform access, tasks, feedback mechanisms – must be assessed as a whole.
2. Secondly, it should be examined whether a structural adjustment makes sense. This could include the separation of live and self-study components, the reduction of formalized learning success checks, or – if economically justifiable – the application for ZFU approval.
3. Thirdly, the contract documentation must be adapted. Clear service descriptions, transparent information on the format, and consistent terminology are essential. In addition, the right of withdrawal according to Sections 312g, 355 BGB should be kept in mind, as many programs are sold at a distance.

Particularly in the high-priced coaching segment with five-figure participation fees, the economic risk of nullity is considerable. Rescission claims can jeopardize the financial viability of an entire business model.

Conclusion

The two decisions of the BGH mark an important milestone for the digital education and coaching sector. While the ruling III ZR 109/24 made it clear that the FernUSG can also cover modern online programs, the ruling III ZR 137/25 creates a necessary differentiation in favor of purely synchronous live formats.

The decisive demarcation runs along the question of whether a structured, predominantly asynchronous learning setting with individual learning success control is present, or whether it is a real-time event with direct interaction. The historical understanding of distance learning from 1976 remains a central interpretation criterion.

There is an urgent need for action for providers of digital education and coaching services. Business models should be legally reviewed, contracts professionally drafted, and marketing statements legally coordinated. The involvement of expert advice in IT and contract law is not only a question of risk minimization but also of strategic positioning in the market. Case law clearly shows that anyone offering digital knowledge transfer is caught between distance selling law, the Distance Learning Protection Act, and general contract law. A clear dogmatic classification is not an academic luxury, but a business necessity.