In Italy, are influencers commercial agents?

Influencer marketing is a now widespread form of online marketing that is based on the collaboration between a digital creator, talent or public figure and a company that decides to make use of them to advertise and promote its products and services on social networks.

The regulatory framework

Influencer marketing is regulated in:

• the Digital Chart Regulation on the recognisability of commercial communications disseminated through the internet, which requires influencers to identify content that is promotional in nature with specific hashtags such as 'Adv'; 'Sponsored by...' 'In partnership with...';
• Legislative Decree 145/2007 on misleading advertising;
• Legislative Decree 206/2005 (Consumer Code) on unfair commercial practices;
• the regulations of the IAP's (Istituto dell'Autodisciplina Pubblicitaria) Code of Self-Discipline of Commercial Communication, which provides for a series of obligations that influencers must comply with when they carry out a commercial communication through social channels, such as, for example, the obligation to make the commercial purpose of the communication known to the user by appropriate means if this is not already clearly inferable from the context (article 7 C.A.);
• the AGCOM (Autorità per le Garanzie nelle Comunicazioni) Guidelines, which equate the activity of influencers, under certain conditions, with that of audiovisual media service providers, with editorial responsibility for the content shared on the platforms, and which impose obligations of transparency and commercial fairness on them, distinguishing between professional and amateur activities and providing for specific sanctions;
• in some respects also the DDL Beneficienza (Charity law) (if and when it enters into force), which regulates advertising and in general commercial practices concerning the promotion, sale or supply of products when the proceeds are partly intended for charitable purposes.  

Contractual forms of influencer marketing 

Influencer marketing contracts have always been considered atypical contracts, through which a party, the influencer, assumes the obligation to advertise the products and/or services of a certain brand through the publication of a post, photo or video on its social networks, against payment of a fee or with the delivery of products and/or services by the company owning the brand.

Recently, the Court of Rome pronounced judgment (no. 2615 of 4 March 2024. 2615 of 4 March 2024) on the legal framework of influencers, where it likened the figure of the influencer to that of a commercial agent. The court stated that the activity of the influencer who permanently promotes a brand's products through its social profiles falls within the typical scheme of the agency contract, where its typical features can be identified, such as the continuity and stability of the agent's activity, aimed at promoting the conclusion of contracts on behalf of the principal within a given area.

The case

This case concerned  a number of influencers who were contractually obliged to continuously promote the products of a certain company through their social profiles and include in their promotional content a customised code that followers could use when purchasing the product to obtain certain discounts.

Therefore, each purchase made through the discount code was contractually regarded as "directly procured" by the influencer with whom it was associated.

In addition, the influencers received a commission fee for each purchase made using that personalised code.

The ruling

The judge considered that the influencers' activity under examination had several elements typical of the agency referred to in article 1742 of the Civil Code, such as (i) the cause of the contract represented by the promotion of the sale of products to the followers of that particular influencer; (ii) the circumscription of the area, given that the court clarified that the term "determined area" in which the assignment is to be performed "must be understood as meaning not only the geographical area, but also the portion of the market, which in the case of the influencer is determined by the community of followers who follow him";(ii) the constraint of stability, proven by the systematic issuance of invoices for an indefinite series of business.

Finally, the judge clarified that, for the purposes of qualifying the influencer as a commercial agent, it is irrelevant that the latter does not receive directives and instructions, "given that this particular type of market, in the web world, is highly standardised, as the purchase is made with a click and the conditions of sale are fixed once and for all".

Osborne Clarke comment

This judgment is therefore the first to bring the activity of influencers under a typical contract, that of commercial agents.

While taking into consideration that the contractual relationship that is the subject of the decision has certain peculiarities that do not characterise every promotion activity on social networks, what the judge stated in this judgment is of great interest for every company to verify, on a case-by-case basis, whether their contractual terms with an influencer may lead to a re-qualification of the contract, with respect to its obligations, such as, for example, contribution obligations.