Digital educational offers remain a legally sensitive area for nonprofits in Germany. After the Federal Court of Justice (BGH) broadly interpreted the scope of the Distance Learning Protection Act (FernUSG) in 2025, it has now provided an important clarification: Not every online format automatically constitutes distance learning. Rather, the decisive factor is how the specific offering is structured contractually. Genuine live online formats involving direct interaction between instructors and participants generally do not automatically fall under the FernUSG.
Distance education as defined by the Distance Learning Protection Act
According to Section 1(1) FernUSG, distance education occurs when knowledge and skills are transmitted on a contractual basis for a fee, instructors and learners are exclusively or predominantly physically separated, and learning progress is monitored.
The practical significance of this classification is considerable: If a distance learning course requiring approval lacks the necessary approval under Section 12 of the Distance Learning Protection Act, the contract is void pursuant to Section 7(1) FernUSG. The BGH had already clarified in its ruling of June 12, 2025, that the law is not limited to consumer contracts but may also apply in the business sector.
BGH: Live communication indicates no physical separation
The case recently decided involved an online training program priced at approximately EUR 8,000. The offer included access to a learning platform with videos, a messenger group, video calls with a coach, and regular video conferences or live calls. There was no authorization under Section 12 FernUSG. The participant therefore demanded a refund of the fees and argued that the contract was void.
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In this context, the German Federal Court of Justice has interpreted the term “physical separation” in a teleological manner. According to this interpretation, teachers and learners are not considered spatially separated under the FernUSG merely because knowledge is transmitted online. Rather, the decisive factor is whether the instruction does not take place via bidirectional synchronous communication, in which the participant – similar to a face-to-face class – can contact the instructor without any particular effort. Pure or predominantly live formats with genuine real-time communication therefore argue against distance learning as defined by the law.
Contractual structure is decisive
Of particular importance is the BGH’s further clarification that the legal classification depends not on the subsequent actual implementation, but on the contractually agreed structure of the program. Caution is therefore particularly warranted in the case of hybrid or mixed models. If a program includes recorded content, learning platforms, or other asynchronous modules in addition to live elements, the Distance Learning Protection Act may still apply. In the case at hand, the BGH therefore did not conclusively determine that distance learning was not taking place, but rather overturned the appellate ruling and returned the case for further review.
Greater legal certainty – but no relief for hybrid formats
The ruling provides greater legal certainty, particularly for genuine live online seminars, webinars, and continuing education formats. This applies, for example, where
- instructors and participants communicate in real time,
- questions can be asked and answered immediately, and
- there is no predominant time-delayed self-study structure.
At the same time, the BGH’s strict stance from 2025 remains in place for asynchronous or predominantly asynchronous programs. Providers of digital educational offers in Germany should therefore continue to carefully review their contractual documents and pedagogical concepts.
Designing live online seminars to ensure legal compliance in Germany
The ruling shows that simply labeling an offering as an “online course,” “coaching,” or “mentoring” provides little legal protection. What matters is the specific structure of the program. Providers of digital educational offers should therefore pay close attention to whether the format is characterized by synchronous live interaction or whether asynchronous elements take center stage. Hybrid formats, in particular, continue to pose significant risks – including the potential invalidity of the contract due to a lack of approval.
WINHELLER advises providers of educational and coaching services on the legally compliant design of digital formats and assists in determining whether approval under the Distance Learning Protection Act is required. We are also happy to assist you in disputes regarding the validity of existing contracts. Please feel free to contact us!
BGH ruling of February 5, 2026, III ZR 137/25
