The Labour Court of Rome, in his recent decision no. 2615 of 4 March 2024, affirmed that the influencer who promotes a brand's products permanently and continuously through his/her social network profiles falls within the typical scheme of the agency contract.

In the case at stake, a company active in the sale of online products sector appealed before the Labour Court of Rome asking it to ascertain the unlawfulness of the Enasarco Foundation inspection whereby it was declared the re-qualification of the relationship between the company and a number of influencers as agency contracts with the consequent duty for the company to register and pay contributions, plus the relevant penalties.

The Court stated that the web and social networks are a possible way for promoting the execution of contracts with consumers, also through influencers. Influencers are professionals who - thanks to their popularity and ability to influence followers - may promote the purchasing choices of their followers through their social network profiles.

The Judge noted that the influencers under the inspection (i) had contractually obligations to continuously promote the brand's products on their social networks pages, (ii) to that end, they indicated on those pages a customised code that followers could use when purchasing the products in order to obtain discounts and, then, (iii) received a commission fee for each sale made by the company using that customised code.

In this context, the decision affirmed that the activity of those influencers had several typical elements of the agency relationship pursuant to Article 1742 of the Italian Civil Code, such as:

• the “cause” of the contract: promoting the sale of products to the followers;

• the determined “area”, i.e. the community of online followers of the influencer and not merely as a geographical area;

• the stability, given by the contractually commitment for indefinite term and commissions continuously received by the influencers, with the systematic issuance of invoices for promotional activities carried out on social networks compensated with a percentage on the value of the sale made through the use of the identification code assigned to the influencer.

Also, the Judge - for the existence of the agency relationship - considered not relevant that the influencer does not receive directives and instructions from the company, since the market in the web is highly standardised - with terms of sale already established - and a simple “click” is enough to purchase.

This is the first decision that qualifies influencers as commercial agents. The contractual relationship covered by the decision under exam had certain peculiarities (not applicable to every type of collaboration with influencers), but the conclusions of the Court are of interest to all brands, and particular attention should be paid in drafting contracts with influencers. Indeed, it will be necessary to verify on a case by case basis whether the relevant terms and conditions may result in a requalification of the contract, leading to the related social contribution obligations.

Authored by Maria Luigia Franceschelli, Elena Pellicano, Maria Beatrice Guardì, and Giulia Maccioni.