In recent years, the activity of influencers has become increasingly widespread and relevant, favoured by the rise and growing popularity of social networks. This phenomenon has profoundly transformed the dynamics of digital communication, influencing marketing, business strategies and consumer habits but, from a regulatory point of view, the legislator has never intervened to regulate their activity. Against this backdrop of increasing development of the profession, the interest of institutions – especially social security institutions – has grown in parallel, evidently wishing to include influencers in their contribution base.

At the same time, the normative-regulatory confusion related to the figure is witnessed, in recent years, by the difficulty of judges to frame the influencer in a precise manner, from a legal point of view, within the cases typified by the legislator.

This uncertainty has generated divergent interpretations and an uneven application of the rules, making the definition of a clear and coherent legal framework for the profession even more complex.

In this context, the relationship established with an influencer was, for instance, considered as a generic ‘self-employment relationship’ (Court of Fiscal Justice – Piedmont Region, No. 219/23); as a ‘sponsorship contract’ (Trib. Pavia, 16/1/23); until it was traced back to the typical ‘agency relationship’ by the Court of Rome, with decision No. 2615/24.

In the latter case, the Rome court upheld the claims of ‘Enasarco’, which had argued that certain influencers were agents, on the basis, inter alia, of certain typical elements of the agency relationship, such as those relating to the stable and continuous promotion of a company’s products.

This jurisprudential orientation highlights the tendency to trace the activity of influencers back to pre-existing contractual schemes, even in the absence of a specific discipline, raising questions about the adequacy of the current regulatory framework in effectively regulating this new professional reality.

Well, this latest pronouncement – known to most for having considered certain ‘sportsmen’, sports-related subjects, ‘personal trainers’ and ‘body builders’ in the same way as commercial agents – has opened the debate among insiders as to the scope of this decision, also in view of the important economic implications that may result from it.

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A recent ruling of the Court of Rome (no. 2615, dated March 4th, 2024) addressed, for the first time in Italy, the issue of the correct legal classification of the so-called “influencers”.

According to this ruling, an influencerwho promotes a company’s products on a stable and continuous basis should be classified as an agent.

Needless to say that the aforementioned ruling has particularly significant consequences for the principal. Just to mention the main ones:

(i)          contribution charges towards Italian social security authority for agents,

(ii)        indemnities and rights provided for by the Italian Civil Code (e.g.: indemnity for termination of agency relationship, implementing Directive 86/653/CEE),

(iii)       administrative obligations,

(iv)       regularization of ongoing contracts,

(v)         management of interlocutions with Italian social security authority for agents,

(vi)       management of authorities’ inspection processes,

(vii)      need for legal assistance in disputes brought by influencers or arising out of authorities’ inspection processes.

By the way, please consider that under Italian Law, the obligation to pay social security contributions also applies to agents (and possibly to influencers) constituted as corporations.

Thanks to our in-depth experience in the field of agency law, we are at your disposal to provide you with all the support you may need for the management and resolution of issues related to the above.

If you want to delve deeper into the topic, you can read the interview published on The Platform.

Following the recent cases that marked a significant moment in the evolution of influencers’ activity, highlighting how crucially important authenticity is between influencers, brands and users, the recent intervention of the Court of Rome is of particular interest. In its judgment no. 2615 of 4 March 2024, the Court expressed its opinion on the classification of the collaboration relationship between influencer and client Company, considered analogous to the contractual regime of the agency relationship under Article 1742 and following, Italian Civil Code. 

In the case considered, the Court of Rome held that the professional “was actually carrying out sales promotion activities where the remuneration was determined by the orders directly procured and successfully completed by the collaborator”, and was able to grant discounts to follower users. 

This is notwithstanding the claimant Company’s arguments that the conditions necessary to classify the influencers as Commercial Agents were missing on the basis of the following factors: the existence of a permanent professional services contract under which the services were provided, the absence of a permanent on-going appointment for the promotion and conclusion on behalf of the Company of sales contracts in a specific area, and the absence of a specified scope of work, which is typical of the contract referred to in Article 1742 of the Italian Civil Code.

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