Update | The difficult classification of the influencers: can they be considered a commercial agents?
The role of the influencer and its difficult classification
The development and expansion of commercial activities on the web has been favoured in recent years by the explosion of social platforms, which have given rise to new professional figures. Among these is undoubtedly the influencer, who is currently the subject of a heated doctrinal debate in an attempt to give him or her a correct classification and framework from a labour law perspective.
The difficulty in regulating the activity of influencers, like other digital workers, stems from the fact that they are a very heterogeneous category; the problem of identifying the protections they are entitled to must be addressed by investigating the relationships that actually exist between the influencer and the company, between the influencer and the digital platform, and between the latter and the company.
Sometimes the relationship is regulated according to the scheme used for sponsorship contracts, and in such cases, agreements may be made directly between the brand and the influencer. Therefore, the relationship, in abstract terms, can be framed, depending on the concrete needs of the parties, as a contract for services or even a service contract.
When the influencer’s earnings represents the only or main source of income, we are dealing with a professional activity (not occasional); in such case, the ‘professional’ influencer (when not organized in such a way as to be configured as an entrepreneur) is considered a self-employed worker who, as exercising an art, is framed under the rules of the contract for services according to the Art. 2222 of the Civil Code. In this case, the activity is continuous, the views on the published content increase the turnover of the company with which he collaborates and, consequently, that of the influencer.
The judgement of the Rome Court: influencers as commercial agents?
In this already variegated scenario, a recent ruling by the Rome Court (no. 2615 of 4 March 2024) even traced the activity of the influencer back to that of the agent.
The Roman judge ruled on the qualification of the employment relationship between a company engaged in the online sale of food supplements and several influencers hired by the company to promote its products through their social channels.
On this point, the judge defined the influencer as a ‘sector expert who, with his posts, allows to offer greater visibility to products or services promoted by him, using the web channels that he considers most appropriate and adequate (Instagram, Youtube, Facebook, a personal blog, etc.. )’ and highlighted the difference between a commercial agent and business intermediary, clarifying that while the former promotes, in a stable and continuous manner, the conclusion of contracts on behalf of the principal, within a specific territorial sphere (through various and non-predetermined acts), the latter, without a constraint of stability and on an entirely episodic basis, collects orders from customers, transmitting them to the entrepreneur.
Moreover, the judge pointed out that, in the agency relationship, the defined area in which to perform the task, deemed not decisive for the qualification, may consist not only of a geographical area but also of a ‘market segment’, which should include the ‘community of followers’ following the influencer.
In the agency contract, the stability and continuity of the activity and the causal link between the promotional work performed by the agent towards the client and the conclusion of the transaction to which the commission request elates are relevant.
The judge inferred the existence of an agency relationship, valuing the concrete manners in which the influencers operated in the case at hand, namely using a customised discount code, promoting its use (to conclude as many contracts as possible), through a mechanism whereby each time a purchase was made through that particular code, the relevant order was considered as directly procured by the influencer.
In this sense, the judge found that there was sufficient evidence to classify the influencers’ relationship within the framework of the agency contract, based on: (i) the purpose of the contract (the sale of the promoted products, traceable through the use, by purchasers, of the discount codes published by the influencers); (ii) the presence of a specific area (identified not in a territorial area, but in the community of followers); (iii) the stability constraint (given the periodicity of the commission payments and the recognition of a fixed fee for each promotional content published); (iv) the duration of the contract (permanent contract).
That being said, the judgment is not without its critical aspects, presenting in our opinion some “exaggerations”, such as, for example, equating the community of followers to an element of ‘territoriality’ and deducing – as a diriment element for determining an agent’s activity – the use of the personalised discount code for the accreditation of product sales in favour of the influencer.
Conclusions
Apart from the particularity of the case reviewed by the Roman judge, the distinctive feature of an influencer is not to “promote … the conclusion of contracts” (as the agent does), but only to “persuade” the potential clientele (his followers) of the opportunity to purchase, informing them of the product and its characteristics.
While it is true that in the case examined by the Rome Court the activity of the influencer was certainly not typical and inherent to the role, we believe that the judgment is not such as to prohibit the parties from agreeing on additional remuneration related to campaign results, even when these are directly connected to the number of sales procured by the influencer. However, precisely in light of this precedent, particular attention should be paid when the parties foresee that the remuneration system is correlated with the use of personalized discount codes attributable to the influencer (promoted by the latter in order to increase the number of contracts).
