Certificates: BGH ruling puts online learning course providers on the barricades

The Federal Court of Justice (Bundesgerichtshof, BGH) has put providers of online learning courses under pressure with a ruling published on October 2nd (File No.: III ZR 173/24). The Karlsruhe judges declared an online coaching program costing over 7,000 Euros, which lacked official approval, to be void. Based on their ongoing case law, they clarified: Offers such as the so-called "E-Commerce Master Club", which impart knowledge and skills and where instructors and learners are spatially separated, fall under the Distance Learning Protection Act (FernUSG). Approval by the State Central Agency for Distance Learning (ZFU) is therefore mandatory, as its absence renders the contract invalid according to Section 7 FernUSG. The BGH emphasizes that the protection of the FernUSG also applies to founders and small businesses, not just to classic consumers.

This ruling catapults the digital education industry into a "legal nightmare," according to its own description. In a letter to Federal Minister of Education Karin Prien (CDU) obtained by heise online, providers already complained in August that the FernUSG from 1976 – designed for postal correspondence – is now hitting the digital present in full force. They criticized the law as "unrealistic, innovation-hostile" and a "massive threat to the digital education location." The completely anachronistic interpretation of key legal terms creates a "climate of fear and legal unpredictability." According to provider Digistore24, the new BGH ruling means that ultimately every online drawing course would have to be certified just like professional further training. Since the approval process is lengthy, expensive, and bureaucratic, many courses are facing closure. At the same time, thousands of lawsuits aim for a refund of course fees.

Reform backlog as educational policy failure

Legal uncertainty has long been fueled by contradictory interpretations by the courts. For example, the Higher Regional Court (OLG) Oldenburg ruled that "spatial separation" in online training exists even with live settings, as instructors and learners are in different rooms. In contrast, the OLG Nuremberg considered spatial separation in a virtual classroom to be non-existent, as similar contact to in-person instruction is possible. Disagreement also exists regarding the criterion of "monitoring learning success": The OLG Stuttgart already considered the option to ask questions as a learning control. The OLG Cologne, however, rejected a "WhatsApp question flat rate" because the success must be verified by the instructor. The industry sees the years-long reform backlog as an educational policy failure. It warns that further delay would lead to the "willful endangerment of an entire economic segment" and the loss of connection to the digital future of education.

In light of the BGH's stance, which interprets learning control as broadly as the OLG Stuttgart, providers of digital knowledge transfer are demanding decisive action from the federal government. They call for an immediate reform of the FernUSG to reflect digital learning realities and secure competitiveness. An immediate moratorium on the application of the outdated law is needed until a contemporary reform is passed. Instead of the slow and inflexible approval process, a digital, tiered certification model should be established that does not slow down start-ups and reduces market entry barriers. The goal of the FernUSG modernization promised by the Black-Red coalition agreement must be consumer protection that builds trust and provides orientation.

(mack)