Federal Court of Justice specifies physical separation for online coaching – contract content is decisive for applicability of Distance Learning Protection Act (FernUSG)

The question of whether and under what conditions online coaching services are subject to the Distance Learning Protection Act (FernUSG) has been occupying the courts for years and has led to inconsistent rulings by the higher regional courts. We have already reported on this in our IP, Media & Technology Updates No. 107 and No. 123, among others. In its ruling of February 5, 2026 (III ZR 137/25), the Federal Court of Justice (BGH) has now, in another key decision, clarified the criteria for assessing spatial separation within the meaning of Section 1 (1) No. 1 FernUSG, thereby providing clarification that is particularly significant in practice: The question of whether teachers and learners are predominantly spatially separated depends primarily on the content of the contract – not on the actual implementation of the teaching. 

Facts

In the underlying case, the plaintiff had concluded a contract with the defendant in December 2022 for participation in the "FBA Unstoppable E-commerce Training Program" at a gross price of €8,092. The contract included various services, in particular access to a learning platform with videos, a messenger group, and video calls with a coach, as well as the opportunity to participate in regular video conferences (so-called live calls). The defendant did not have a license for distance learning courses in accordance with Section 12 FernUSG. The plaintiff claimed that the contract was void in accordance with Section 7 (1) FernUSG because it lacked the necessary license under the FernUSG and demanded repayment of the fee.

Key statements of the judgment

1. Teleological reduction of the concept of spatial separation

The Federal Court of Justice first confirmed the course it had already taken in its judgment of June 12, 2025 (III ZR 109/24): Section 1 (1) No. 1 FernUSG is to be interpreted by way of a teleological reduction to the effect that the teacher and the learner are to be regarded as spatially separated if the transfer of knowledge takes place over a physical distance and not by means of bidirectional – synchronous communication, in which the learner has the opportunity to contact the teacher without any particular effort, as is the case in face-to-face classes. The court justified this by stating that when the FernUSG was enacted in 1976, the legislature was unaware of today's technical possibilities for synchronous bidirectional communication and that, according to its purpose, the characteristic of physical separation can only fulfill its function of distinguishing it from traditional face-to-face teaching if it is additionally required that the transfer of knowledge takes place at a different time (asynchronously) or that the learner has no opportunity for direct exchange. 

The BGH thus expressly rejects the opposing view that any transfer of knowledge via online communication should be considered spatial separation. In doing so, it contradicts the Higher Regional Courts of Celle, Stuttgart, and Dresden, which had affirmed spatial separation based solely on physical presence in different locations. 

2. The content of the contract is decisive – not the actual implementation

The central clarification, which is particularly important in practice, concerns the question of which facts should be used to assess the physical separation. The Federal Court of Justice states unequivocally: The decisive factor is the content of the contract, i. e., the legally agreed form of the service, and not the actual form of the lessons or the scope of the services actually used by the learner. 

In contrast, the court of appeal (Higher Regional Court of Oldenburg) had erroneously based its decision on how the lessons actually "took place" and weighted the asynchronous and synchronous parts of the lessons on the basis of the actual use by the plaintiff. The BGH criticizes this as legally erroneous and refers to its landmark decisions of June 12, 2025 (III ZR 109/24) and October 2, 2025 (III ZR 173/24). 

3. Criteria for assessment in individual cases

According to the Federal Court of Justice, whether the teacher and the learner are predominantly physically separated during the transfer of knowledge depends on the specific circumstances of the individual case. Possible points of reference in the case of different teaching services, as in this case, include the content and significance of the partial services for the intended learning success or the respective duration of the learning units provided for in the contract. Recordings of synchronous teaching components that are subsequently made available to participants for retrieval in accordance with the agreement reached are to be treated as asynchronous teaching.

4. Burden of proof

According to the Federal Court of Justice, the burden of proof and presentation for the factual requirements of Section 1 (1) FernUSG lies with the party invoking the applicability of the FernUSG – typically the participant asserting the invalidity of the contract. The teleological reduction of the provision has no influence on this. 

5. Monitoring of learning success – broad understanding

The ruling also contains a statement relevant to practice regarding the element of learning success monitoring pursuant to Section 1 (1) No. 2 FernUSG: This element is already fulfilled if the participant is contractually granted the right to ask questions relating to their own understanding of the material learned. According to the Federal Court of Justice, no further "monitoring by the teacher" is required. 

Practical consequences: need for review and adjustment for coaching providers

The decision has significant practical implications for providers of online coaching and mentoring programs. By focusing on the content of the contract, the contractual design becomes the central lever for determining whether an offer is classified as distance learning within the meaning of the FernUSG – and is therefore subject to the licensing requirement under Section 12 FernUSG. A violation of this licensing requirement leads to the nullity of the contract pursuant to Section 7 ( (1) FernUSG, with the result that participants can reclaim the remuneration paid. 

Providers of online coaching, mentoring programs, and comparable digital continuing education offerings should therefore urgently review their existing contracts and amend them if necessary. In particular, the following should be noted:

First, the contractual service description should be subjected to a thorough review. Since the Federal Court of Justice (BGH) bases its decision on the content of the contract, the wording of the services owed is crucial. Contracts that focus on asynchronous elements such as learning videos, self-study modules, or recorded content run the risk of being classified as distance learning if no license has been obtained. Conversely, contracts that clearly focus on synchronous, bidirectional communication formats – such as live calls, interactive workshops, or real-time individual coaching – may indicate that there is no predominant physical separation. 

In addition, the weighting of the individual service components in the contract is important. The Federal Court of Justice cites as possible points of reference both the content and significance of the partial services for the intended learning success and the respective duration of the contractually stipulated learning units. Particular caution is required if recordings of synchronous parts of the course are made available to participants for later retrieval, as the Federal Court of Justice treats such recordings as asynchronous teaching.

Finally, it should be noted that the Federal Court of Justice interprets the characteristic of monitoring learning success very broadly. The contractual granting of a right to ask questions is sufficient. Since such a right to ask questions is likely to be included at least implicitly in almost every coaching offer, this criterion will regularly be fulfilled in practice. The applicability of the FernUSG will therefore be decided in most cases by the question of physical separation.

Conclusion

With its ruling of February 5, 2026, the Federal Court of Justice has set another important guideline for the legal classification of online coaching services under the FernUSG. The clear focus on the content of the contract as the assessment criterion for spatial separation gives providers legal certainty on the one hand, but also creates an urgent need for action on the other. Existing contracts should be reviewed promptly for compliance with the principles established by the Federal Court of Justice and amended if necessary in order to minimize the risk of contractual invalidity under Section 7 (1) FernUSG.