Federal Court of Justice (BGH) clarifies the definition of distance learning: synchronous online instruction is not distance learning

Once again a highly practice-relevant judgment of the Federal Court of Justice (BGH) on fundamental criteria for distance learning contracts The Federal Court of Justice (BGH) once again specifies the scope of the Fernunterrichtsschutzgesetzes (FernUSG) and with the Urteil vom 5. Februar 2026 – III ZR 137/25 it consistently continues its more recent case law on digital coaching and training formats. The decision brings a doctrinally sound and practice-relevant clarification: Not every spatial distance is sufficient for distance learning. What matters is whether knowledge transfer takes place asynchronously or whether a bidirektionale synchrone Kommunikation takes place that functionally corresponds to in-person instruction. For providers of online coaching, mentoring programmes and digital training formats, the judgment is of considerable significance.

Legal basis of the Distance Learning Protection Act

The Fernunterrichtsschutzgesetzes (FernUSG) dates from 1976 and serves to protect participants in paid distance learning courses. Key provisions are:

• § 1 Abs. 1 FernUSG: Definition of distance learning
• § 12 FernUSG: Requirement for approval by the State Central Office for Distance Learning (ZFU)
• § 7 Abs. 1 FernUSG: Invalidity of distance learning contracts for distance learning courses not approved in accordance with § 12 Abs. 1 FernUSG

Distance learning is present when

• knowledge or skills are conveyed for a fee,
• teacher and learner ausschließlich oder überwiegend räumlich getrennt are,
• and a Überwachung des Lernerfolgs takes place.

If the required approval is lacking, the contract is void – with considerable risks of unwinding.

The more recent case law of the Federal Court of Justice (BGH) on online coaching

The Third Civil Senate has dealt several times in recent years with the applicability of the FernUSG to digital business models. In doing so, it was clarified:

• What matters is the content of the contract, not the marketing designation.
• A monitoring of learning success is already present if a contractual right to ask questions exists.
• The actual implementation is irrelevant – what is decisive is what is owed.

With the judgment from February 2026, the feature of "spatial separation" is now doctrinally recontoured.

This is what the latest Federal Court of Justice (BGH) judgment was about

The defendant offered a high-priced online training programme in the e-commerce sector. The price was around 8,000 euros. Components of the contract included, among other things:

• access to a learning platform with videos
• regular live calls
• video one-to-one consultations
• messenger group
• further accompanying services

A ZFU approval was not available. The claimant sought reimbursement of the remuneration and relied on the invalidity of the contract pursuant to § 7 FernUSGAlternatively, she asserted a violation of good morals. The lower courts dismissed the claim. The Federal Court of Justice (BGH) set aside the judgment of the Higher Regional Court (OLG) Oldenburg and remitted the case.

No violation of good morals merely due to high coaching prices

The Senate first confirms that high-priced coaching does not per se violate § 138 BGB. Decisive is the market price customary for comparable services. Relevant is the specific coaching market, not isolated individual components such as inexpensive learning videos. A striking disproportion was not substantively established. The good morals assessment thus remains strictly market-oriented.

The central turning point: Teleological reduction of the "spatial separation"

The core of the decision is the interpretation of § 1 Abs. 1 Nr. 1 FernUSG. The wording would already be satisfied by any physical distance. However, the Federal Court of Justice (BGH) undertakes a teleological reduction. The FernUSG was originally intended to distinguish the classic distance learning course from direct instruction. In 1976, there was no technically possible synchronous online communication. The Senate therefore clarifies: A "spatial separation" within the meaning of the FernUSG does not exist if knowledge transfer takes place by means of bidirectional synchronous communication and the learner can interact directly with the instructor without undue effort. Synchronous live-online instruction is functionally comparable to in-person instruction and therefore does not automatically fall under the FernUSG. This clarification prevents an unbounded expansion of the statute to modern digital teaching formats.

Decisive is the contract content – not the actual use

The appellate court had focused on how frequently the claimant actually participated in live calls. The Federal Court of Justice (BGH) explicitly corrects this: decisive is which structure is owed contractually. The actual utilization of individual modules is irrelevant. The Higher Regional Court (OLG) had not made sufficient findings on the specific contract content. Therefore, the case was remitted.

Monitoring of learning success: broad interpretation confirmed

Particularly relevant to practice is the renewed clarification regarding monitoring of learning success. A contractually granted right to ask questions suffices. There is no need for a classical examination or active monitoring by the instructor. Thus, this objective element remains easily satisfied – which is of considerable importance for providers.

Practical implications for coaching providers

The decision creates greater legal certainty but at the same time tightens the requirements for contract drafting. No distance education exists if synchronous live-online instruction predominates with genuine possibility of interaction. Distance education may exist if:

• asynchronous video modules predominate
• live content is only supplementary
• recordings are made available for time-shifted use
• self-study structures are characteristic

Particularly important: recordings of synchronous sessions are considered asynchronous instruction if they are made available on demand.

Concrete recommendation for providers

Providers of online coaching should

• carefully review their contract structure
• clearly define the proportion of synchronous and asynchronous elements
• formulate service descriptions precisely
• document which teaching format is characteristic
• review whether ZFU approval might be required

The decision demonstrates: Not the label "coaching", but the didactic structure is decisive.

Conclusion

With the judgment of 5 February 2026, the Federal Court of Justice (BGH) strengthens doctrinal clarity in distance education law. The teleological reduction of the concept of "spatial separation" prevents an inappropriate equating of live-online instruction with classical distance learning courses. At the same time, the risk of invalidity pursuant to § 7 FernUSG remains high in predominantly asynchronous concepts. Particularly in the market for high-priced online programmes, a thorough legal review is indispensable. If you nullity pursuant to § 7 FernUSG in predominantly asynchronous concepts remains high. Particularly in the market for high-priced online programmes, a thorough legal review is indispensable. If you develop, market or defend an online coaching model, we will review the relevance of the FernUSG, licensing obligations and unwinding risks for you. We are happy to advise you individually on this matter at our law firm AVANTCORE Rechtsanwälte in Stuttgart, which specializes in competition law and regulatory law, among other areas. We have already reported on the recent case law of the Federal Court of Justice (BGH) on online coaching:

The course fee from a void coaching contract must be repaid: fundamental criteria of the Federal Court of Justice (BGH) on coaching as distance learning