Do you sell an online course with live mentoring? Your customer logged in, opened the recordings, and attended the sessions. Two years later, they demand a refund of the full price — and they will probably get it. Not because they did anything wrong. Because on the day of purchase, you failed to send one email. An email that can no longer be sent retroactively.
Most companies selling online courses with mentoring are convinced that the right of withdrawal expires because the customer “used the product". This is a mistake. The Consumer Rights Act does not ask whether the consumer opened a recording. It asks whether you — as the trader — completed four specific steps during the sale. If you omitted even one of them, the consumer may withdraw from the contract and recover the full price, regardless of how much of the material they watched.
In this article, I will explain what these four conditions are, why the fourth is almost always overlooked, what does NOT constitute confirmation on a durable medium, and what to do if you sell a package combining recordings with live sessions. At the end, you will find a checklist that you can complete in one evening.
Key concepts before we go any further
Right of withdrawal — the consumer’s right to cancel a distance contract (e.g. one concluded online) within 14 days without giving a reason. The trader must then refund the full price.
Digital content not supplied on a tangible medium — data produced and supplied in digital form, such as video recordings, e-books, and audio files. It does not include physical media (discs, USB drives).
Durable medium — a tool that allows consumers to store information addressed personally to them, access it for an appropriate period, and reproduce it unchanged. An email with a PDF attachment generally meets this requirement. A website or pop-up generally does not.
Mixed package — a product combining digital content (recordings, downloadable materials) with services provided over time (mentoring, live sessions, workshops). The package’s legal classification affects when and whether the right of withdrawal expires.
Article 38(13) of the Consumer Rights Act — the provision excluding the right of withdrawal in the case of paid digital content not supplied on a tangible medium, but only if four conditions are met cumulatively.
Four conditions for losing the right of withdrawal for digital content
Article 38(13) of the Consumer Rights Act (as in force from 1 January 2023, consolidated text, Journal of Laws 2024, item 1796) excludes the right of withdrawal in the case of paid digital content not supplied on a tangible medium — but only if four conditions are met cumulatively.
| Condition | What you must do | When | Who is responsible |
|---|---|---|---|
| 1. The consumer’s express prior consent | Use a separate checkbox, not selected by default, to obtain consent to begin performance before the withdrawal period expires | Before performance begins | Trader |
| 2. Acknowledgement of the loss of the right | The consumer must separately confirm that they understand they will lose the right of withdrawal | Before performance begins | Trader |
| 3. Pre-contractual information | Provide information about the right of withdrawal and the conditions under which it will be lost, in accordance with Article 12 of the Consumer Rights Act | Before the contract is concluded | Trader |
| 4. Confirmation of the contract on a durable medium | Send confirmation of the contract, including information about the consent given and the loss of the right of withdrawal | When the contract is concluded or immediately afterwards | Trader |
Note that all four obligations rest with the trader. The Act does not require the consumer to have actually used the content. Login logs, acceptance of a notice, an IP address, or activity in the app — none of these replaces any of the four steps.
Why the fourth condition is almost always overlooked
Most platforms handle conditions 1–3 on the checkout screen — a checkbox, a declaration, terms and conditions. The fourth condition requires something more: providing confirmation of the contract on a durable medium, including information about the consent given and the loss of the right of withdrawal.
This refers to Article 15(1) and (2) or Article 21(1) of the Consumer Rights Act (amendment of 1 December 2022). Without this confirmation, the other three conditions achieve nothing.
Worse still, the absence of this document cannot be remedied retroactively. If you did not send it on the day of purchase, you cannot send it two years later when a claim arrives.
What does NOT constitute confirmation on a durable medium
This is where companies make the most common mistakes. The case law of the Court of Justice of the European Union defines precisely what a durable medium is — and the list of exclusions is longer than you might think.
| Document or channel | Does it meet the durable-medium requirement? | Why |
|---|---|---|
| Email from the seller with a PDF attachment | ✅ Yes | The consumer can store it, access it, and reproduce it unchanged |
| Confirmation from a payment provider (e.g. Stripe, PayU) | ❌ No | It comes from an entity other than the seller and does not contain the required information |
| Invoice | ❌ No | It does not provide notice of the right of withdrawal or information about the consent given and the loss of that right |
| Payment thank-you page | ❌ No | The trader can change the content; the consumer has no control over its storage |
| Pop-up in the platform dashboard | ❌ No | It disappears when closed, and the seller can change its content — in Case C-49/11 Content Services, the CJEU confirmed that a website whose content can be changed by the trader is not a durable medium (CJEU C-49/11) |
| Message in the customer dashboard | ⚠️ Conditionally | Only if it meets the criteria set out in the CJEU’s judgment in Case C-375/15 BAWAG: immutability, individual delivery, and availability for the required period |
The definition of a durable medium comes from Article 2(10) of Directive 2011/83/EU, implemented in Article 2(4) of the Consumer Rights Act. In Case C-375/15 BAWAG (25 January 2017), the CJEU clarified that a customer dashboard can meet the requirement only if it ensures the message remains unchanged, is addressed individually, and remains available for the required period.
Conclusion: the only safe solution is an automated post-transaction email from the seller containing the product name, price, date, the wording of the consent given to begin performance, and notice of the loss of the right of withdrawal.
A course with live mentoring — digital content or a service?
This is where the second layer of the problem arises. Even if you meet all four conditions, they may not apply at all — because your product may not be “digital content".
When Article 38(13) does not apply
Article 38(13) of the Consumer Rights Act applies exclusively to digital content not supplied on a tangible medium. If your product includes live sessions, mentoring, workshops, or group sessions, it may be classified as a service provided over time.
The difference is fundamental:
| Criterion | Digital content | Service provided over time |
|---|---|---|
| The right of withdrawal expires | Once the 4 conditions under Article 38(13) have been met | Only once the service has been fully performed |
| When it expires | When performance begins (if the conditions are met) | After the multi-month programme has ended |
| Risk associated with a package | The conditions may not cover the live components | The consumer may withdraw while the programme is still in progress |
Directive 2019/770 covers digital content supplied on a one-off or continuous basis, but Directive 2019/2161 indicates that the supplier’s continuous involvement supports classification as a service.
One package for one price — a trap few people know about
If you sell one package for one price (recordings + live sessions + mentoring + app access) and your terms and conditions do not allocate the price between the components, the consumer may demand a refund of the entire amount when withdrawing.
Article 35(1) of the Consumer Rights Act allows for a pro-rata settlement — the consumer pays an amount corresponding to the extent of the services performed up to the time of withdrawal. However, Article 36 of the Consumer Rights Act provides that the consumer does not bear the costs if the trader failed to fulfil the information obligations or obtain the required consent (consolidated text of the Consumer Rights Act).
A price allocation devised for the purposes of a dispute — after the purchase — is not a contractual allocation. Merely breaking down the price into components does not guarantee the right to retain the fee for the recordings if you did not meet the four statutory conditions.
A real case: two claims, two lessons
The following scenario illustrates how these provisions work in practice — and why a defence built on the wrong arguments leads nowhere.
Scenario one: “But they logged in"
A company sells a single online package for one price: a library of recordings, live sessions, mentoring, app access, and a software licence. The terms and conditions, drafted several years earlier, describe only the provision of digital content. The product grew; the document stayed where it was.
After two years, a participant demands a refund. The company is convinced that the right of withdrawal has expired because the customer logged in and used the materials. It builds its defence around technical evidence: access logs, acceptance of a notice, the IP address, and app activity.
The consumer does not dispute having accessed the platform at all. They state explicitly that logging in alone does not establish that the conditions for losing the right of withdrawal were met. And they are right — because the dispute is not about whether the customer used the product, but whether the company completed the four statutory steps.
The analysis found that:
- The payment thank-you page did not even contain the product name — there were empty quotation marks where the name should have been — or the price or information about the consent
- Confirmation from the payment provider is not confirmation that the contract was concluded (it comes from another entity)
- The company did not send confirmation on a durable medium containing information about the consent given and the loss of the right of withdrawal
- The log showed only the first and last use of the app — it did not prove user activity
The right of withdrawal most likely had not expired. The company was fighting on the wrong ground.
Scenario two: a claim after three years
Another consumer purchased a place at a workshop after a webinar using a payment link sent by email. They attended in person and raised no objections for three years. They then sent a formal demand — based not on withdrawal, but on improper performance of the contract and unfair commercial practices.
The problem: the terms and conditions covered only sales through the website. This contract was concluded outside that process.
Two cases, two different decisions. In the first, a refund was offered (less burdensome than the real risk of losing the case). In the second, the claim was disputed in full, with a moderate litigation risk. The difference was not a matter of stubbornness, but of the evidence available to the company.
What these cases teach us
- The Act does not require the consumer to have used the content — it requires four steps on the trader’s side
- A defect in the sales process affects the entire customer portfolio from the relevant period — one claim may be the first of many
- Terms and conditions that describe only digital content when the offer includes live sessions, mentoring, and licences do not match the actual product
- The claim arrived three years after the purchase — sales documentation must be retained for years, not months
Extension of the withdrawal period — how much time does the consumer have?
Article 29(1) of the Consumer Rights Act (amendment of 1 December 2022) provides that if the consumer is not informed about the right of withdrawal, that right expires 12 months after the end of the standard period (14 days). If the trader informs the consumer before those 12 months have elapsed, the deadline is 14 days from the date on which the information is provided.
This is commonly referred to as “12 months and 14 days" — but under the Act, the 12 months are calculated from the end of the standard period, not from the date the contract was concluded.
Note: there is no definitive ruling on whether every failure to provide confirmation on a durable medium (where the consumer was in fact informed) automatically triggers the full 12-month extension. Statements in this regard should be made cautiously. What is undisputed, however, is that a lack of confirmation breaches the information obligations under Article 14 of the Consumer Rights Act and undermines the effectiveness of the exclusion under Article 38(13) (UOKiK — withdrawal deadlines).
Burden of proof and record-keeping — who must prove what?
Where a misleading unfair commercial practice is alleged, Article 13 of the Act on Counteracting Unfair Commercial Practices applies (consolidated text of the Act on Counteracting Unfair Commercial Practices): the trader bears the burden of proving that the practice does not constitute a misleading unfair commercial practice. This is confirmed by case law, including the Warsaw Regional Court judgment in case XXV C 394/17 of 13 December 2018.
This means that claims about “individual mentoring", “presentations using real data", or “guaranteed results" are promises that you will have to prove. And to prove them, you need an archive.
What to retain and for how long
Article 118 of the Civil Code (consolidated text of the Civil Code, Journal of Laws 2024, item 1061) provides for a general limitation period of 6 years (3 years for claims related to business activity). Article 17(3)(b) and (e) of the GDPR (GDPR — EUR-Lex) excludes the obligation to erase data where retention is necessary for the establishment, exercise, or defence of legal claims.
| What to retain | Minimum period | Legal basis |
|---|---|---|
| Versions of the terms and conditions with their effective dates | 6 years after sales under that version ended | Article 118 of the Civil Code, Article 6(1)(f) of the GDPR |
| Templates of offers sent after a phone call/webinar | 6 years after last use | Article 118 of the Civil Code |
| Recordings of sales webinars | 6 years from the date of the webinar | Article 13 of the Act on Counteracting Unfair Commercial Practices (burden of proof) |
| Landing pages (dated screenshots) | 6 years from the publication date | Article 13 of the Act on Counteracting Unfair Commercial Practices |
| Contract confirmations sent to consumers | 6 years from the date the contract was concluded | Article 38(13) of the Consumer Rights Act |
| User activity logs | 6 years from the last activity | Article 35 of the Consumer Rights Act (pro-rata settlement) |
| Consents to begin performance | 6 years from the date consent was given | Article 38(13) of the Consumer Rights Act, Article 7(1) of the GDPR |
Note on the GDPR: evidence of consent, logs, and offer materials may be retained after the original purpose has ended only to the extent and for the period necessary to defend against claims. The GDPR does not prescribe a single fixed retention period — the period depends on the legal basis of the claim.
Potential consequences from UOKiK
A defect in the sales process affecting an entire customer portfolio may attract the attention of the President of UOKiK. Decision No. 7/2021 concerning Centrum Naukowe sp. z o.o. (UOKiK decision) analysed the conditions under Article 38(13) of the Consumer Rights Act for digital content, including the requirement to obtain express consent and provide information. Decision RWA-61-6/14/DJ (UOKiK Alma Mater decision%20(2)-1.pdf)) challenged a clause in the terms and conditions imposing a penalty equal to 50% of the outstanding course fees.
A general clause in the terms and conditions stating “no refunds after purchase" is insufficient to effectively exclude the right of withdrawal. UOKiK challenges both infringements of the right of withdrawal and provisions imposing penalties on consumers for cancellation.
Sole traders and consumer protection
If your customers buy courses “for business purposes", check whether this changes the situation. Article 7aa(1) of the Consumer Rights Act (consolidated text of the Consumer Rights Act) provides that the provisions on the right of withdrawal apply to a natural person concluding a contract directly related to their business activity if the contract indicates that it is not of a professional nature for that person — assessed, among other things, by reference to the scope of business disclosed in CEIDG.
A sole trader purchasing a course in a field different from the scope of business disclosed in CEIDG may exercise the right of withdrawal on the same terms as a consumer. The scope of business disclosed in CEIDG is only one of the criteria — Article 7aa uses the phrase “in particular".
Checklist: complete it in one evening
Complete the following steps in order. You can carry out each of them yourself or with the help of a lawyer.
Audit — do this today
- Buy your own product as a test customer. Archive everything: checkout screens, the wording of the consents, the thank-you page, emails, and the invoice
- Check whether any document contains all of the following: the product name, price, information about the consent given to begin performance, and notice of the loss of the right of withdrawal. If not, you do not have confirmation on a durable medium
- Classify every product you sell: digital content, a service, or a mixed package. Record this classification — before a court does it for you
Fix the process — do this this week
- Implement an automated post-transaction email serving as confirmation of the contract: product name, scope, price, date, the wording of the consent given to begin performance before the withdrawal period expires, and notice of the loss of the right of withdrawal. An email to the consumer — not a webpage, not a pop-up, and not confirmation from the payment provider
- Allocate the price between the package components in the contract and terms and conditions (access to recordings / live programme / software licence) — or consciously decide that you are selling a single package and accept the risk of having to refund the full amount
- Align the terms and conditions with the actual sales process: if some contracts are concluded after a phone call, through a payment link sent by email, or at offline events, terms and conditions covering only sales through the website will not protect those transactions
Future safeguards — do this this month
- Expand product event logging from “first and last use" to a record of activity: which lessons were opened, for how long, attendance at live sessions, and licence generation. A printout of the log should identify the system and user and include the date and time with the time zone and a description of the operation (consolidated text of the Code of Civil Procedure, Journal of Laws 2024, item 1568)
- Set up a version-controlled archive: every version of the terms and conditions, offer description, landing page, sales webinar materials, and offer templates — together with their effective dates
- Train your sales team and webinar presenters on the boundary between marketing language and a contractual assurance
- Review your historical customer portfolio: determine the period during which the sales process did not include confirmation on a durable medium, how many customers are affected, and the maximum financial exposure
We can help you with this
You cannot remedy the lack of confirmation retroactively. But you can eliminate future exposure and manage your historical customer portfolio in an informed way.
We help companies selling digital and subscription products organise their sales process so that it complies with the Consumer Rights Act — without obstructing the purchasing process.
Our support is available at three levels:
- Operational essentials — a test purchase of your product, verification of the four conditions, and proper confirmation on a durable medium
- Solid foundation — new terms and conditions, separation of the individual deliverables and allocation of the price, and product classification (digital content / service / mixed package)
- Comprehensive protection — alignment of the entire sales process (checkout, phone offers, webinars), activity records, a version-controlled archive of documents and offer materials, a claims-handling procedure, and an assessment of exposure to claims from the historical customer portfolio
If you sell online courses, training programmes, or membership packages to consumers, contact us. We will begin by reviewing your sales process and show you what needs to be corrected.
Summary: what to remember from this article
The right of withdrawal for digital content does not expire because the customer used the product. It expires when you have completed four steps during the sale — and almost no one completes the fourth: confirming the contract on a durable medium.
If you sell a package combining recordings with live sessions, your product may not fall under the exception in Article 38(13) of the Consumer Rights Act at all. And if you sell it for a single price without a contractual allocation, the consumer may demand a refund of the entire amount upon withdrawal.
The cost of fixing the process (new terms and conditions, rebuilding the checkout, automated confirmation on a durable medium) is a one-off expense and is incomparably lower than the exposure to full-price refunds for all customers who purchased while the process was defective.
Start by making a test purchase of your own product. If you need support with an audit, revising your terms and conditions, or assessing your exposure, contact us.
Frequently asked questions
I have been selling online courses for years and have never sent confirmation on a durable medium. What is my exposure?
Your exposure potentially includes all consumers who purchased while the sales process did not include confirmation. Any of them may withdraw from the contract and demand a refund of the full price — regardless of whether they used the materials. The lack of confirmation cannot be remedied retroactively. However, you can fix the process going forward and assess the risk relating to your historical customer portfolio so that you can prepare a response strategy before the second demand arrives.
Is an email containing an invoice and a link to the platform sufficient as confirmation on a durable medium?
No. An invoice does not provide notice of the right of withdrawal or information about the consent given to begin performance or the loss of the right of withdrawal. The confirmation must contain all these elements — and it must come from the seller, not the payment provider or invoicing system.
My course consists of recordings plus two live sessions a month — am I selling digital content or a service?
It depends on the structure of the offer and which component predominates. If the live sessions are a regular, recurring part of the programme requiring the supplier’s continuous involvement, the product may be classified as a service provided over time rather than digital content. For a service, the right of withdrawal expires only once it has been fully performed — meaning after the programme has ended, not after the first login. It is worth establishing the classification in the terms and conditions and offer description before a court does it for you.
If I divide the price into “access to recordings" and “live programme", can I retain the portion relating to the recordings if the consumer withdraws?
Simply breaking down the price does not guarantee the right to retain the fee for the recordings. The digital-content exception (Article 38(13) of the Consumer Rights Act) applies only if the materials genuinely constitute a separate deliverable AND the four statutory conditions are met. The allocation must be justified by the actual structure of the deliverables and market prices — it cannot be devised for the purposes of a dispute.
The customer completed the entire programme and demands a refund after a year — can they really win?
If you did not meet the four statutory conditions, the consumer has grounds to withdraw regardless of how much material they watched or how many sessions they attended. The Act does not require the consumer to have used the content — it requires four steps on the trader’s side. In addition, if you failed to fulfil the information obligations, the consumer may not be required to bear the costs of a pro-rata settlement (Article 36 of the Consumer Rights Act).
Do these rules also apply to B2B sales — sole traders buying a course for their business?
They may. Article 7aa of the Consumer Rights Act provides that a natural person operating as a sole trader is entitled to consumer protection if the contract indicates that the purchase is not of a professional nature for them. This is assessed, among other things, by reference to the scope of business disclosed in CEIDG. If a graphic designer buys a financial management course, they may be able to exercise the right of withdrawal on the same terms as a consumer.
