A ruling by an Italian court (Rome) may prove to be a game changer for ‘influencers’. Last year, the court ruled that, under certain conditions, an influencer could be considered a commercial agent, which would grant them access to new rights and protections. This raises important questions: ‘Could this happen in Belgium or other EU countries as well?’ and ‘What does this mean for influencers in practice?’.
When could an Influencer be Considered as a Commercial Agent?
Imagine an influencer who regularly collaborates with a brand, contributes to increasing sales through content, and is compensated based on performance (e.g., commissions from promo codes/enhancing sales). The Italian court ruled that these activities could be deemed equivalent to those of a commercial agent. This implies that, upon termination of the collaboration, the influencer may be entitled to compensation for the customer base they have built.
Key Points from the Italian case:
The three most important points raised by the Italian court are as follows:
- More than traditional advertising: The influencer’s role goes beyond merely advertising products. They provide measurable results for the brand and directly stimulate product sales.
- The community as a ‘territory’: The influencer’s followers are viewed as a ‘territory’ or ‘operational area’ where the activity takes place, similar to the geographical area of a commercial agent.
- Stability as a source of rights: Regular and sustainable collaboration with a brand may be sufficient to establish a stable commercial relationship.
What about Belgium? Could the same qualification apply?
The protection regime for commercial agents stems from a European directive from 1985, meaning the principles are largely consistent across EU member states. In Belgium, specific conditions must be met to be recognized as a commercial agent (Article I.11, 1° of the Belgian Code of Economic Law):
- Regular activity: A continuous and regular collaboration with one or more brands is required. One-off campaigns do not meet this criterion.
- Measurable results: An active contribution to sales is essential. This may include referring directly to a brand’s website or by using promo codes.
- Independence: The influencer’s activity must be conducted independently. There should be no subordinate relationship with the brand or business.
- Compensation: The activity must generate income, such as commissions or a fixed compensation per publication.
While the qualification is groundbreaking, it remains to be seen how other European courts will address this issue.
Limitations on qualification as a commercial agent:
Not all influencers meet the requirements to be recognized as commercial agents. In cases where
- The collaboration with brands is one-off ;
- there is no financial compensation resembling a commission ;
- the activity is purely general advertising without a direct connection to a sales channel, the influencer will not automatically be classified as a commercial agent.
Conclusion: Well thought drafting influencer agreements
For brands, influencers, and influencer agencies, it is crucial to clearly define clear contractual terms and compensation structures. This is the certainly the case where a brand would engage in a mid to long-term partnership with an influencer that go beyond mere advertising.
MVVP has a long standing experience in both agency agreement and influencer agreements backed by its commercial contracts and media & entertainment teams.