The Federal Court of Justice (BGH) confirms a broad interpretation of the requirement for learning assessment for the applicability of the Distance Learning Protection Act (FernUSG)

The Federal Court of Justice (BGH) once again had to address the question of when monitoring of learning progress by the instructor constitutes “supervision” within the meaning of Section 1(1)(2) of the Distance Learning Act (FernUSG). In its latest ruling of February 12, 2026 (III ZR 73/25), the BGH reminds the lower courts of its broad interpretation of this criterion, thereby reinforcing its previous case law.

Furthermore, the BGH clarifies that the determination of whether knowledge and skills are being imparted asynchronously always depends on the specific case.

Facts

The most recent proceedings were based on the following facts:

The defendant offers online mentoring programs without authorization under Section 12(1), sentence 1 of the Distance Learning Act (FernUSG). The plaintiff entered into a so-called “Business Class Coaching Agreement” with the defendant. According to the defendant, this Business Class mentoring is a highly professional and very personalized mentoring program designed to help establish one’s own business.

The plaintiff was required to pay EUR 16,000.00 for the seven-month duration of the coaching.

The goal of the program was to establish her own online business in the field of coaching. Under the terms of the contract, the plaintiff gained access to instructional videos and workbooks on the online platform and participated in weekly live calls with the defendant or the experts it had engaged. In addition, a “live customer event” took place over a weekend in Baden-Baden. Employees of the defendant even managed the plaintiff’s Facebook page and handled the brand design.

The Legal Dispute

The parties now argued before the Federal Court of Justice (BGH), among other things, whether the purpose of the coaching program was to impart knowledge and skills or merely to provide support for professional development.

The central issue – as in all coaching cases – was the nullity of the contract pursuant to § 7(1) of the Distance Selling Act (FernUSG).

The plaintiff was successful before the Ulm Regional Court. However, the Stuttgart Higher Regional Court dismissed the claim in its entirety, holding that the contract was not void under Section 7(1) of the Distance Selling Act. In the Federal Court of Justice’s recent decision, however, the plaintiff prevailed.

Previous Case Law of the Federal Court of Justice

The ruling aligns with the BGH’s line of case law regarding the applicability of the FernUSG. As early as February 5, 2026 (III ZR 137/25), the BGH clarified the central and controversial question of when a geographical separation exists under Section 1(1)(1) of the FernUSG. We previously reported on this in our IP, Media & Technology Update No. 137. Furthermore, last year (judgment of June 12, 2025 – III ZR 109/24), the BGH affirmed the applicability of the FernUSG to the B2B sector as well, thereby increasing the relevance of this new area of law. As previously outlined in our IP, Media & Technology Update No. 123, this topic is of great significance.

Key finding of the ruling: A right to ask questions suffices as a learning assessment

In its latest ruling, the Federal Court of Justice (BGH) had to address, in particular, the question of when contractually agreed monitoring of learning progress exists pursuant to § 1(1)(2) FernUSG.

The fact that the plaintiff may be a start-up entrepreneur and thus an entrepreneur within the meaning of § 14 BGB could be left open here. As outlined above, the FernUSG also applies to entrepreneurs. The BGH has now reiterated this in its ruling.

The Higher Regional Court, however, based its dismissal of the claim on the absence of monitoring of learning progress: the mere possibility of asking questions was insufficient. Active monitoring by the defendant provider had not been agreed upon.

The Federal Court of Justice expressly disagreed with this narrow interpretation and clarified that individual exam assignments or other specific learning assessments are not required for this element of the offense. The Senate has previously ruled that it is sufficient if the learner is entitled under the contract to receive individual monitoring, for example through oral questions on the material covered in an accompanying class session. Most recently, the court reaffirmed this precedent on January 15, 2026 (III ZR 80/25).

The individual case remains decisive

Although the Federal Court of Justice (BGH) corrected the Higher Regional Court’s legal opinion, it could not ultimately rule in favor of the plaintiff. This is because the appellate court had left open whether the contract was aimed at the transfer of knowledge and skills at all – or whether it was rather a matter of individual consulting and support in building a business.  The Federal Court of Justice (BGH) could not determine which specific services were to be provided by the defendant. In particular, it was unclear what was meant by “mentoring” in this context and what specific knowledge was to be imparted.  For this reason, the Higher Regional Court (OLG) will have to clarify in detail the nature, content, and focus of the contract concluded between the parties in the new appeal proceedings.

In summary, whether so-called business coaching or mentoring services fall under the Distance Selling Act must be assessed by examining the specific scope of services agreed upon in each individual case, with the focus of the contract being decisive.

The other party to the contract may bear a secondary burden of proof regarding the agreed-upon content, format, and manner of delivery.

Furthermore, the Higher Regional Court did not sufficiently determine the exact proportion of synchronous and asynchronous instructional components (live calls vs. videos) in this case. The Federal Court of Justice refers in this regard to its ruling of February 5, 2026 (III ZR 137/25), Update IP, Media & Technology No. 137.

What does this ruling mean for those affected?

The Federal Court of Justice (BGH) continues to consistently interpret the criterion of monitoring learning success broadly. With its latest ruling, the BGH has now reaffirmed its case law within a span of less than two months. It can therefore be assumed that the BGH will not take a more restrictive approach anytime soon.

This provides legal certainty, but also shows that contract drafting in the online coaching and mentoring sector remains a key factor for the applicability of the FernUSG: On the one hand, affected coaching providers must ensure, upon concluding a contract, that they agree on a right to ask questions with the learner. Furthermore, in legal disputes involving the FernUSG, it continues to depend on whether the focus of the coaching was on knowledge transfer or on personal counseling. This leaves room for further argumentation.