How the BGH is paralyzing digital further education with a 70s law
BGH judgments subject online courses to strict 70s law. A disaster for the industry, analyzes Joerg Heidrich.
(Image: insta_photos/Shutterstock.com/heise medien)
Webinars and online courses have been an integral part of professional development, not just since the pandemic. Legally, such offerings fall under the Distance Learning Act (Fernunterrichtsgesetz). While its regulations had hardly any practical relevance for years, several decisions by the Federal Court of Justice (Bundesgerichtshof, BGH) are now causing a veritable wildfire for the German digital and further education landscape.
However, the starting point for the BGH's decisions are not reputable further training offers, but rather shady coaching providers. Whether it's a "Business Mentoring Program" for 47,600 euros or the "E-Commerce Master Club" for around 7100 euros – in both cases, the BGH denied the providers a claim for payment (BGH III ZR 109/24, III ZR 173/24).
However, what was intended as necessary regulation of the booming, but in part disreputable, online coaching market has extremely unpleasant consequences for providers of online further training. This is because the court ruled that almost all such offerings fall under the Distance Learning Protection Act (FernUSG). This is a law from the analog era of 1976, when materials for further education were still sent by mail.
The core message of the BGH in both cases is identical and of brutal clarity: the contracts are void from the outset according to § 7 para. 1 FernUSG. The reason: the providers did not have the required state approval from the competent authority, the State Central Agency for Distance Learning (Staatliche Zentralstelle für Fernunterricht, ZFU) based in Cologne, for their online courses. This is a bombshell: a massive wave of claims for repayment is looming, which affects black sheep and endangers the existence of reputable seminar providers.
Loss of all claims
The consequences for providers are brutal and go far beyond a fine or the possibility of termination: the provider loses all claims to the agreed remuneration, as the contract legally never existed. Furthermore, participants can reclaim all fees already paid in full. They do not even have to account for services already rendered. The claim for repayment thus applies even if the participant has already received and used the service – such as a seminar, coaching, or video course – in its entirety.
In practice, this means that a participant, for example, completes a 12-month IT training course, during which they demonstrably acquire valuable skills and possibly find a good job as a result. Nevertheless, they can subsequently sue the provider for a refund of the full course fee, citing the lack of a ZFU number. They effectively receive the service for free.
This case law not only protects consumers from disreputable offers but actively invites dissatisfied or even fraudulent customers to refuse payment for a service that has been provided fully and reputably – and entirely legally. It hits those reputable providers hardest who acted in good faith, unaware of the extensive interpretation of the law.
An analog law for a digital world
To understand the scope of the problem, one must look at the origin of the FernUSG. The law dates back to 1976, a pre-digital era. Its legitimate purpose was to protect consumers from overpriced, low-quality distance learning courses sent by mail. The ZFU has always been responsible for approving such offers.
An approval requirement exists if three criteria are met:
- paid provision of knowledge and skills
- a "predominantly spatial separation"
- "monitoring of learning success"
The problem: The judges in Karlsruhe and the ZFU in Cologne interpret these criteria so broadly that almost every modern e-learning offer falls under the approval requirement. For instance, the BGH believes that the requirements apply equally to private and commercial participants, which does not align with the original intention of consumer protection. However, the FAQs from the ZFU indicate that live seminars, which all participants attend via Zoom or Teams, for example, are considered "equivalent to in-person attendance." Therefore, they are exempt from approval and do not fall under the FernUSG.
But the digital reality is different. As soon as live webinars are recorded and made available to participants for later, time-shifted access, the classification changes. According to the ZFU definition, this is considered an "asynchronous self-study phase." The BGH argues that the recording makes synchronous participation "superfluous," which establishes the character of distance learning.
However, the absurdity of the law and case law is most evident in the area of monitoring learning success. In the analog age, a test was sent, which the participant then returned or completed on-site; there were thus graded exams or mandatory tests. According to the BGH's definition, however, a learning success control is already present if the participant is "merely given the opportunity to ask content-related questions." The reasoning: If participants ask a question, whether in a chat, a forum, or a live Q&A, the lecturer can draw conclusions about the learning progress, which constitutes "monitoring of the learning status."
ZFU approval as an alternative?
The seemingly simple way out of the dilemma is to apply for ZFU approval. However, this approval process is completely unsuitable for modern e-learning offerings and is described by industry insiders as a massive "brake on innovation." This is because the process is not only expensive but also extremely bureaucratic.
For example, it is not possible to certify the company; rather, each individual course must be registered and approved. And this process is prohibitively expensive, especially for small providers, self-employed individuals, or niche courses. The minimum fee alone is 1050 euros per course, with the standard fee being 150 percent of the net course price. For a B2B workshop costing 2500 euros net, the authority's fee is therefore a hefty 3750 euros.
ZFU approval then confirms that a course meets the requirements of the FernUSG and that the courses are professionally and didactically suitable for achieving the course objective. Compliance with legal regulations, for example regarding distance learning contracts and information materials, is also checked. However, whether this overhead is necessary, for instance, for a one-hour webinar on current malware threats, is debatable.
And the process can take time! Applicants report waiting times of between three and nine months for approval to be granted. In addition, didactic concepts, learning materials, videos, assignments, and contract documents must be submitted for review. Currently, the ZFU seems to be so overwhelmed with a flood of new applications since the BGH rulings that it is not reachable by phone "due to current developments."
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Deteriorate service?
And another point: the ZFU system is based on the 1970s model of a static, printed textbook. "Significant changes" to the course, such as new modules, altered learning objectives, new legal situations, or updates, therefore require a new, paid review and approval. However, for most providers, especially in the fast-paced IT sector, it is structurally impossible to operate an agile IT course in compliance with ZFU regulations. The provider would have to wait months for a new approval for every important update.
In effect, a provider who wants to avoid the impractical approval requirement must actively worsen their offering. This is because they have two options: either they forgo recording the course, thus denying participants the opportunity to engage with the content at their leisure after the live session ends. Or they fundamentally forgo feedback options and do not allow any questions during the event.
It is obvious that these restrictions are not very sensible and are not in the interest of the organizers or the customers. The BGH case law and the completely outdated law thus only offer limited protection to participants from bad courses. In fact, this legal situation promotes worse, because unsupervised courses, if providers want to avoid the bureaucracy of the ZFU. Reputable providers who focus on interaction, community, and support as didactic added value are penalized.
An appeal to the legislator
It must be stated that the FernUSG is a completely outdated law, which, to make matters worse, is also extensively interpreted by the BGH. While this affects some black sheep from a not always reputable coaching industry, the entire professional further education industry is also affected, which is ultimately fatal for Germany as an educational location. Not least, a wave of lawsuits from participants is looming, who can now even reclaim fees after completing their course. This situation will even endanger the substance of some providers.
The legislator is urgently called upon here to revise this deeply unsatisfactory legal situation. A clause in the coalition agreement already aims to modernize the Distance Learning Protection Act to improve quality and transparency in digital further education. This is demanded by the entire education industry and in a statement even by the German Federal Audit Office, which suggests a complete abolition of the law.
However, little has happened so far. This is also because a large-scale modernization of digital further education offerings is planned. This is an important goal, but it is taking too long. However, a timely legislative emergency brake is necessary to first adapt the current situation to reality.
Note: heise group also operates a platform for digital education with heise academy.
(mki)
