Brand collaborations, agency growth, and the rise of micro-influencers have increased significantly over the years. As a result, brands are investing more in influencer partnerships as a trusted channel for increasing consumer engagement. It is now common to work with micro-influencers who are just starting out, as well as UGC creators. In these circumstances, a critical legal question arises: how should the influencer be classified? When does their role transition from that of an independent contractor to a “commercial agent”?
Recent court decisions in Europe signal that brands can no longer treat influencer classification as an afterthought. Failing to address it upfront could expose brands to legal obligations—including termination indemnities, notice periods, and social security contributions.
The Italian Wake‑Up Call
Influencers are usually treated as independent contractors: they post content, get paid a fee, and move on to the next campaign. In March 2024, the Court of Rome -section for labour law maters (R.G. 38445/2022) - ruled that an influencer using discount codes and ongoing brand partnerships met the legal requirements for classification as a commercial agent under the Italian Civil Code. According to The Court, the influencer’s role in directly generating sales, sales tracking through personal discount codes, and maintaining an indefinite contractual relationship with the brand was enough to trigger the protections afforded to agents. This case underscores that substance trumps labels: a brand must closely design influencer terms to avoid unintended exposure to agent law.
Under Article 1742 of the Italian Civil Code, a commercial agent is someone who:
- works independently,
- has a long-term relationship with a brand,
- is paid commissions linked to the sales they generate, and
- acts in a defined area or market.
If that sounds like many affiliate‑style influencers today, you’re probably right. The Rome court found that one influencer wasn’t just “promoting” a product—she was effectively selling it on behalf of the brand. The reasons why:
- Ongoing relationship: She worked with the brand on an open-ended basis, not just a one-off campaign.
- Sales tracking: She used personalized discount codes, letting the brand tie purchases directly to her work.
- Defined market: Her follower community counted as her “territory.”
- Commission pay: She earned based on the sales her followers made, not only on fixed fees.
Because of this, the court said she was a commercial agent—not just a contractor. For brands, this means that simply structuring an arrangement as a “collaboration” or “affiliate” campaign does not guarantee it will be treated as such in law. Courts and regulators will look at substance over form.
A European Trend?
Italy is not an outlier. Across Europe, the status of “influencers” is being more and more specified, not necessarily by definition but by requirements.
Germany:
According to German commercial agency law (Section 84 HGB), influencers may be deemed agents if:
- They are self-employed;
- They have a contractual obligation (not just optional rights) to broker specific transactions;
- Compensation is sales-based, tied to followers’ purchases via discount codes or affiliate links.
In Germany, courts apply the commercial agency test under Section 84 of the Commercial Code (HGB) strictly, and sales-linked remuneration is a key trigger; where influencers meet these criteria, they may be entitled to the protections and termination payments set out in EU Directive 86/653/EEC.
Spain:
In Spain, Royal Decree 444/2024, which implements the General Law on Audiovisual Communication (Ley General de la Comunicación Audiovisual - LGCA), article 94, requires certain high-earning or high-reach influencers to register in the national audiovisual registry, moving toward agency-style regulation. For example, a creator earning over €300,000 a year from online content and reaching more than one million followers on a single platform would be classified as a “User of Special Relevance” and subject to the same advertising and content rules as traditional broadcasters.
France
Since June 9, 2023, the French law - Law No. 2023-451 - has governed the activities of commercial influencers. It defines an influencer as any individual or legal entity who, in exchange for payment, uses electronic communication to share content aimed—directly or indirectly—at promoting goods, services, or any cause.
Why Classification Matters
If an influencer is classified as a commercial agent, brands may face:
- Termination indemnities: Compensation owed when the relationship ends, sometimes amounting to significant sums.
- Notice period obligations: A structured timeline for ending collaborations, limiting flexibility.
- Social security contributions: Potential liability for benefits normally reserved for employees or agents.
- Increased litigation risk: Influencers may challenge their classification to seek statutory benefits.
How to mitigate the risk
Brands can reduce the risk of unintended agency classification by adopting a compliance‑by‑design approach when starting a new collaboration with an influencer:
- Favor Fixed Fees Over Commission‑Based Pay
- Avoid linking compensation directly to tracked sales, which courts see as a hallmark of agency.
- Train your team
- Keep your marketing team up to date on requirements, have a professional speaking regarding this matter, e.g., once a year.
- Use Short‑Term or Project‑Based Agreements
- Limit ongoing, indefinite collaborations that mimic traditional agency arrangements.
- Emphasize Independence in Contracts
- Spell out that influencers are independent contractors, free to choose how and when to post, without binding obligations to achieve sales targets.
- Avoid Territorial Exclusivity
- Don’t allocate influencers’ “territories” (e.g., follower bases by region), which resembles classic agency structures.
- Document Voluntary Behavior
- Keep records showing influencers had discretion in accepting or declining collaborations, reinforcing the absence of agency obligations.
- Regularly Review Compliance Frameworks
- Monitor evolving laws in your markets (eg, Italy, France, Spain, Germany) and update influencer agreements accordingly.
What’s next?
Rules around influencers in Europe are no longer taking shape—they’re settling in. Not all countries have gone as far as France and Spain and actually defined the word “influencer” in a regulatory manner, setting clear thresholds, registration rules, and advertising standards. Others—such as Italy and Germany—are taking a different route, applying existing commercial agency or advertising laws when an influencer’s work fits the criteria. The result is a patchwork of rules across Europe, where the exact same campaign could trigger very different obligations depending on the country.
For example, if one influencer is hired for a campaign running in Spain, France, and Germany, they could:
- Need to register in Spain’s national audiovisual registry (Royal Decree 444/2024)
- Follow France’s disclosure and advertising rules under Law No. 2023-451
- Be classified as a commercial agent in Germany under Section 84 HGB, triggering notice and indemnity rights
That means a single contract and campaign could create three different sets of legal obligations at once. Many brands underestimate that and only check one jurisdiction. Brands that fail to plan for this cross-border complexity risk not only non-compliance, but also increased costs, delayed launches, and reputational damage.
The European Audiovisual Observatory recently published a guide regarding this topic in order for people in the industry to be aware of how influencer status is defined. It also outlines that compliance isn’t optional — even without a legal definition, influencers can still be treated as audiovisual media service providers or come under consumer protection law, making it essential for brands to check national criteria (like income thresholds, sales tracking, or audience size) before structuring contracts or campaigns. Brands that overlook how influencers are classified could end up paying much more than the cost of a campaign. Building compliance measures into contracts and everyday processes helps safeguard both a brand’s marketing goals and its legal standing.
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