The influencer often carries out a sales promotion activity for a fee: does this make him a commercial agent?

In order to legally frame the figure of theinfluencerit is necessary to start with a brief analysis of their activity, trying to give it a, albeit generic, definition. L'influencer, as the word itself implies, is a person who is able to influence the opinions and attitudes of other people, because of his or her reputation and authority on certain issues or areas of interest.[1]

In particular, the marketing influencer is an industry expert (which can range from fashion, to travel, music, technology, etc.) that, with its posts, allows it to offer greater visibility to products or services it promotes, using the web channels it considers most appropriate and adequate (Instagram, Youtube, Facebook, a personal blog, etc.).

L'influencer Precisely because of the decisive role it plays within the communication processes, it is often commissioned by companies in the sector in which it operates to advertise their products, thus carrying out a sales promotion activity, which is remunerated through the payment of a fee.

Precisely because theinfluencer often carries out a sales promotion activity for a fee, typical of the better-known figure of the commercial agent, the question may arise as to whether theinfluencer (in certain hypotheses), may be accumulated to such a contractual figure (see on this point But are online platforms commercial agents?)

Before proceeding to this analysis, it is important to clarify that, with this article, we want to give some food for thought, mainly aimed at trying to better frame the new modes of intermediation, with the intention of 'monitoring' the development of distribution techniques, with the help of new technologies.

If the contractual relationship between the company and influencer is governed by a written agreement, the point of reference for the interpreter's activity must certainly be the text of the negotiated declaration in the first place.

In any case, although the negotiated text is the first parameter of interpretation, for a correct exegesis one must not limit oneself "to the literal text of the words" (Art. 1362 of the Civil Code), but it is necessary to seek, through an overall examination of the deed, by interpreting the clauses of the "one through the other" (Art. 1363 of the Civil Code), what was the result pursued by the conclusion of the agreement, i.e. what was "the common intention of the parties", i.e. the meaning they both attributed to the agreement[2].

In order to trace the will of the parties, it will be necessary to take into account how the relationship actually developed.influencer to the producing company by analysing some of the typical contractual elements of the agency, namely whether:

  1. there is or is not a consultancy activity in addition to sales promotion;
  2. there is an obligation of stability of tenure;
  3. the company has the power to dictate the market guidelines and strategies of theinfluencer;
  4. there is a contractual non-compete clause;
  5. there is a commission payment, based on sales made.

Since there is no single, 'decisive' element to understand whether a given relationship qualifies as an agency, it must be considering the different typical elements in the individual case of this contractual figure, bearing in mind that none of them alone allows the relationship to be correctly framed, but rather an overall assessment of all of them must be carried out.[3]

1. There is a consultancy activity alongside the promotion activity?

Sometimes the contractual relationships that bind the influencer to companies are governed by consultancy contracts, remunerated through the payment of a fixed fee, sometimes coupled with a variable fee, calibrated on the sales generated by the promotional activity of theinfluencer.

There is no doubt that often theinfluencer performs a genuine consulting activity, being a professional who knows the market of social and the company contacts him, not only for his notoriety, but also to understand how to advertise products through the use of digital platforms.

It is also true that it is far from unusual for published posts and videos to be 'accompanied' by a linkwhich redirects the consumer to a particular shop online (which can be either the manufacturer's or a third party's), where it is possible to purchase the product advertised by theinfluencer.

Any purchase by the consumer through the use of this link is tracked, thus enabling the parties to verify the sales actually realised through the promotional activity of theinfluenceron which variable remuneration may be calculated.

In that case, one would be faced with a so-called ' contractmixed"consisting of the merger of the causes of action of two contracts: a contract of brokerage and a contract for consulting services. According to case law, in the event the parties enter into a contract of this nature mixedthe same shall be subject to the unitary discipline of the prevailing contract. It is stated on this point that:

"The mixed contract, consisting of elements of different types of contract, is not only unique, but has a single and inseparable cause, in which the elements of the different types that constitute it are combined. It is subject to the prevailing contract and predominance is determined on the basis of economic or other indices, such as the "strength" of the type or the interest that moved the parties, unless the elements of the non-prevailing contract, regulated by its own rules, are incompatible with those of the prevailing contract."[4]

In the light of the above, in order to understand which category to subject the brokerage/consultancy relationship to, it will be necessary to refer to how the relationship has actually developed over the years and to verify whether or not the consultancy activity takes precedence over the brokerage activity, noting that, if so, it would be more complex to consider the relationship as an agency contract (Main differences between the agency contract and the commercial distribution contract).

2. Absence of an obligation of stability of tenure

To understand whether the relationship between the company and influencer may be subject to the agency discipline, it is certainly essential to ascertain that the sales promotion activity (and not only the positioning of the brand) is carried out with stability. As has already been discussed (cf. What is the difference between an agency contract and a business intermediary?) is precisely the obligation to promote sales with stability one of the distinctive elements of the agency contract. It is stated in case law that:

"while the agent is the part that assumes permanently the mandate to promote on behalf of the other (principal or principal), the conclusion of contracts in a specific area, the business procurer is the person who collects orders from customers and transmits them to the company from which he has been commissioned, without stability constraint (unlike the agent) and on an entirely occasional basis [...].

Thus, while the agent's service is stable, as he is obliged to carry out the activity of promoting contracts, the procurer's service is occasional, in the sense that it depends exclusively on the his initiative.[5]"

If ascertaining the stability of the assignment is already a complex activity in the case of brokering "traditional'.is certainly even more so if the promotion activity is carried out online. Consider the (not uncommon) case of a influencer reviewing a product on youtube. The activity they perform is to create a video and post it on the platform.

The effects of such promotional activity, in any event, last over time, sometimes for months or even years (normally until the product reviewed is superseded by a new product launched by the parent company, or until the video is deleted from the web). In such a case, one would need to understand whether or not this promotion activity that unfolds its effects over time can be considered 'stable' within the meaning of an agency relationship.

While it is certainly not easy to give an unequivocal answer to this question, it is certainly without doubt advisable to contractually regulate the manner of payment of remuneration on sales conveyed by this post realised after the termination of the relationship between influencer and company.

(On this subject, cf. The commercial agent's commissions for business concluded by the principal after termination of the relationship; ...but if the commercial agent has procured long-term contracts and the relationship is dissolved before their expiry...).

3. Duty of the principal to impart market guidelines and strategies

A second distinguishing point of the figure of the commercial agent is certainly constituted by the obligation he assumes to follow the instructions of the principal, who is the party responsible for deciding market policies and imparting commercial strategies to the distribution network. Article 1746(1) of the Civil Code expressly provides that the agent must:

"perform the task entrusted to him in accordance with the instructions received [...]'.[6]

In the agency relationship, it is the responsibility of the principal to devise sales and marketing strategies. marketingstrategies to which agents normally belong and to which they must adhere in the performance of their duties, always within the limits prescribed by the principal.

It follows that the agent has a duty to follow the principal's instructions and is obliged to act in accordance with his instructions, also with regard to the objectives to be pursued and the results to be achieved, and may not refrain from adopting certain sales methods or techniques. marketing developed by the principal.[7]

Once again, as analysed in point 1 of this article, it will be necessary to check very carefully whether theinfluencer is obliged to follow the general directives of the company, or is he himself directing the company in its choices of strategy and marketing in the area of its competence (on this subject cf. The agency contract and the employment relationship: distinguishing criteria and evaluation parameters.).

4. Absence of non-competition

Article 1742 of the Civil Code provides that:

"The principal may not use more than one agent in the same area and for the same line of business at the same time, nor may the agent take over the business of several competing undertakings in the same area and for the same line of business."

According to settled case law, the non-competition clause is a natural but not essential element of the agency contract[8]with the consequence that the parties are free to regulate their relations differently either by an express agreement or by concluding behaviour[9] (on this subject see also Area exclusivity in the agency contract e Agency contract, exclusivity and indirect commissions.).

Although an agent is normally free to act by promoting several competing products, such an 'open' mode of promotion is certainly anomalous and is found in a more limited number of contractual relationships.

Applying this principle to the present case, it could be said that if a influencer carries out its activities in favour of several competing companies, without any of the intermediaries raising any objection as to the manner in which they operate, this element could be a clue which, although in itself cannot absolutely exclude the relationship from being classified as an agency, if combined with those already analysed above, could be a component that could influence its classification

5. Payment of commissions

Where the contract expressly provides as a method of calculating the consideration of theinfluencer the commission payment, this alone cannot be regarded as a sufficient element to be able to identify the relationship as an agency. The parties, in fact, whether they wish to conclude an agency contract or a consultancy/service contract, may freely (formerly Article 1322 of the Civil Code) define the remuneration terms that they deem to be the most appropriate and suitable in the case at hand.  

Suffice it to say that if the relationship were to be framed as an atypical contract for the provision of services, Article 1657 of the Civil Code on the subject of contracts gives the parties complete freedom to decide on the manner of payment and calculation of services, which may therefore also be of a commission nature.

Having said that, it cannot however be denied that the payment of the activity by means of the acknowledgement of a commission is typical of the agency relationship and it must therefore not be excluded that this must be taken into account when interpreting the contractual relationship.

In the event, the relationship is only remunerated with a fee in fixed formAlthough the European directive does not exclude the reconciliation of this method of remuneration with the figure of the agent, Italian jurisprudence (criticised by part of the doctrine[10]) stated its opposition to this argument,[11] considering that in that case the intermediary would not assume any entrepreneurial risk, which is a distinguishing feature of the figure of the agent.

A different matter, however, if the relationship were to be remunerated through the payment of a mixed remunerationunder which a fixed component is combined with a variable component. Such a solution whereby the agent is assured a "guaranteed minimum"is considered lawful and compatible with the agency employment relationship.[12]

Those analysed above are only a few elements that allow the interpreter to understand how best to frame a "dubious" contractual relationship, which must however be carefully analysed in its entirety, verifying the individual elements that characterise such a complex and versatile contractual figure.

[1] https://www.glossariomarketing.it/significato/influencer/.

[2] TORRENTE - SCHLESINGER, Handbook of Private Law, § 311, GIUFFRE EDITORE.

[3] Bortolotti, Distribution Contracts, p. 129, 2016, Wolters Kluwer.

[4] See Trib. Cagliari, 4. 5.2017; Trib. Firenze Decreto, 2.11.2016, Trib. Taranto Sez. I, 11.8.2016, Trib. Milano Sez. VII, 29/02/2012; Cass. civ. United Sect., 12.5.2008, n. 11656.

[5] Tribunale di Firenze Sez. lavoro, 4.3.2014.

[6] This obligation is also found in Art. 5, para. 2, AEC Industry 2014 and Art. 3, para. 2, AEC Trade 2009.

[7] On this point see also Bortolotti, Distribution Contracts, Wolters Kluwer, 2016, p. 166 et seq.

[8] Cass. Civ. 2002 no. 5920, Cass. Civ. 1994 no. 2634, Cass. Civ. 1992 no. 5083.

[9] Cass. Civ. 2007 no. 21073, Cass. Civ. 1992 no. 5083.

[10] PERINA - BELLIGOLI, The Agency Relationship, p. 27, Giappichelli Editore; Saracini-Toffoletto, p. 327 ff.

[11] Cass. Civ. 1986 no. 3507; Cass. Civ. 1991 no. 10588; Cass. Civ. 2012 no. 12776. The latter judgment went so far as to admit that "in the agency relationship the parties may provide for a form of remuneration for the agent's services other than a commission determined as a percentage of the amount of business concluded (such as a fixed sum for each contract concluded), but without going so far as to acknowledge that remuneration in the form of a commission can be entirely replaced by a fixed remuneration.

[12] See on this point Cass. Civ. 1975 no. 1346; Cass. Civ. 1980 no. 34; Trib. Di Milano 9 September 2011.