The agency contract: traditional framework
Article 1742 of the Italian Civil Code defines an agent as someone who, on a stable and continuous basis, undertakes the task of promoting the conclusion of contracts on behalf of the principal, operating in a specific area or for a specific category of clients. The fundamental characteristic is therefore promotion on a stable basis and with continuity of business, aimed at the conclusion of contracts between the principal and third parties.
The agent does not simply advertise, but carries out an activity aimed at concluding contractual relationships: he receives commissions based on successful deals and operates within a well-defined regulatory framework (obligations, rights, severance pay, etc.).
The influencer’s activity: communication or intermediation?
The role of the influencer is different. Creators use their social media visibility to promote products or brands, often through posts, stories, or videos. In most cases, their activity is limited to advertising: the influencer showcases a product, recommends its purchase, and directs viewers to the manufacturer’s website, but does not directly promote the conclusion of contracts.
Compensation is generally set as a fixed amount (a fee for content or campaigns) and not as a percentage of the deals closed. This is a factor that clearly distinguishes them from agents.
When a risk of being classified as an agency may arise
However, there are cases in which the collaboration between influencers and companies can take on characteristics similar to an agency contract. This occurs when:
- the influencer carries out a stable and continuous activity, not limited to isolated campaigns;
- the compensation is based on the business generated (for example, commissions for each contract concluded thanks to a personal discount code associated with the influencer);
- the activity is not limited to generic advertising, but takes the form of a real commercial intermediation between consumers and companies.
In such cases, the relationship could be reclassified as an agency, with all the resulting legal consequences: right to commissions, exclusivity obligations, protection in the event of termination, and severance pay.
Risks for businesses
Companies that employ influencers must pay particular attention to drafting contracts and the manner in which the collaboration relationship is conducted. A poorly drafted agreement could lead to disputes, with claims of rights typical of the agent. Italian case law has already shown a certain tendency to evaluate the substance of the relationship rather than the contractual form: this means that the mere label of “collaboration contract” or “provision of services” does not preclude possible judicial reclassification, while particular attention must be paid to the specific manner in which the relationship is conducted.
How to structure contracts with influencers
To avoid qualification issues, it is advisable that influencer contracts clearly specify:
- the advertising and mere communication nature of the service;
- fixed remuneration, not directly linked to the business concluded;
- the absence of the stability, continuity or exclusivity constraints typical of the agency contract;
- the reference to the rules on copyright and advertising regulations, which are more pertinent than those of the agency.
Final reflections
The line between advertising and agency activity is becoming increasingly blurred in the digital age. If the influencer acts simply as a spokesperson, the relationship remains within the scope of a service or sponsorship contract. However, if they become a true business intermediary who directly promotes the conclusion of contracts, the protective rules of the agency may apply. Therefore, for businesses, proper contractual qualification is not a formal matter, but an essential element, to be assessed also based on the specific modalities of the relationship, to prevent legal and financial risks.
