In a recent decision, the Court of Rome retrained an influencer, who promoted the sales of a company’s products on the internet under certain conditions, as a commercial agent (Court of Rome, No. 2615 of March 4, 2024).
The case originated from an inspection of the Italian Commercial Agents’ Social Security Foundation (“Ente Nazionale Assistenza Agenti e Rappresentanti di Commercio” – ENASARCO), by which the above-mentioned Foundation requested a company to pay contributions in relation to certain influencers whom Enasarco considered to be regarded as commercial agents. The company, believing that the conditions for retraining them as commercial agents were not met, brought an appeal before the Court of Rome (labour section) claiming for the annulment of the Enasarco report and, consequently, asking that the sums claimed by Enasarco by way of contributions and related fines be declared not due. Enasarco appeared before the Court, opposing the company’s appeal and reiterating its arguments in favor of such retraining. The Court of Rome decided in favour of Enasarco.
Namely, in that specific case, by signing the “influencer agreement”, the influencer undertook to promote the sales of the company’s products on social media and, as part of these promotional activities, the influencer could send his followers a discount code that they could use when purchasing the company’s products from the company’s website, in order to obtain a price reduction. At the same time, this discount code, referred to the specific influencer, also allowed the company to attribute the customer/follower to that influencer, and then to pay him/her a commission on the relevant sale. Particularly, the contract expressly provided that “for each directly procured and successful order, the influencer shall be entitled to receive from the company a fee of 10% […]”.
In substance, on the basis of the documents submitted, after having analyzed and summarized the main differences between a commercial agent and an occasional intermediary, the Court considered the existence of a series of clues (serious, precise and univocal) capable of demonstrating the elements of stability and continuity, typical of the notion of commercial agency referred to in Article 1742 of the Civil Code. In particular, the following elements were deemed suitable to qualify the relationship as a commercial agency relationship:
-the purpose of the contract with the influencer, which does not consist of mere propaganda but the sale of products by the company to the specific followers brought by the influencers;
-the presence of a “defined area”, which (although not a “geographical area”), can well be understood as a community of the influencer’s followers, who purchase the company’s products through the influencer’s customized discount code;
-the constraint of stability proven by the presence of statements of account of the commissions received by the influencers and by the systematic issuing of invoices for an indefinite series of business procured through the promotional activity carried out on social networks and websites compensated with the percentage established in the contract;
-the duration of the contract, provided for a no fixed term, with a view, therefore, to a stable and predetermined relationship.
In conclusion, according to this decision, an influencer who promotes the sales if a company’s products online on a stable and continuous basis shall be retrained as a commercial agent. The Court of Rome also clarified that, in order to be regarded as commercial agents, it is not necessary for the influencers to individually address their followers, presenting them the product’s characteristics, price etc., and encouraging them to purchase, considering that in the web world the promotion of products is ensured through other means, i.e. the publication on the various social networks by influencers of content (posts or stories) addressed to their followers; what is important is that their activity is aimed at the conclusion of the sale’s contract for which they are remunerated and is carried out on a stable and continuous basis.
Silvia Bortolotti, IDI Vice-Chair/Secretary General and Country Expert for Italy
