In the ever-evolving world of digital media, companies are increasingly turning to influencers to promote their products and services. How should these collaborations be framed legally? Are influencers freelancers, employees, agents—or something else entirely?
The answer depends less on labels and more on the nature of the relationship and the specific obligations involved.
Italian law recognizes several possible contractual frameworks that may apply to influencers. Depending on how the collaboration is structured, influencer agreements can fall under these categories:
- Freelance/independent professional work.
- Employment.
- So-called ‘co.co.co’ collaborations, where the worker has considerable autonomy but is subject to the coordination and direction of the employer.
- Agency contracts (when there’s a promotion of business opportunities).
What matters most is the reality of the situation and how the relationship functions in practice. This includes considering whether the influencer operates autonomously or is subject to control by the client including detailed instructions, tight schedules, and performance monitoring.
Several legal trends and case law developments have highlighted the importance of evaluating influencer work case by case, with a focus on:
- Autonomy: Is the influencer free to decide how, when, and where to produce content? In this case, a freelance contract may be sufficient.
- Control and coordination: Does the company dictate how the work of the influencer should be performed (e.g., what to say, how to say it, and when to publish)? In this case, a more structured relationship, such as a co.co.co collaboration or in some cases an employment agreement may be required.
- Promotion of third-party business: Is the influencer actively promoting sales or services? If the answer is yes, then their activity may be closer to that of an agent, which carries its own regulatory framework and protections.
It is important to get the classification right not only because of the legal rights and protections available to the influencers but also, because, depending on the classification, social security payment obligations may vary, and these amounts could be significant. For example:
- Freelancers typically pay into the Gestione Separata (separate fund).
- Employees contribute to the general pension system.
- Entertainment workers (if classified as such) are enrolled in a special pension fund for performers.
- Agents may also be subject to enrolment in the ENASARCO fund.
Getting the classification wrong can be costly – and not only in terms of back social security contributions – but also because of the risk of fines and reputational damage.
Influencer marketing is still relatively new in legal terms, and there’s no one-size-fits-all approach. Businesses engaging with influencers need to look beyond job titles and hashtags. Instead, they should carefully assess the day-to-day dynamics of the relationship to ensure the contractual and social security setup matches the reality of the working arrangement. Failing to do so risks misclassification, legal disputes, and financial penalties.
When drafting or reviewing influencer contracts, it will be important to evaluate the substance of the collaboration and if in doubt, to take legal advice tailored to the specific circumstances to evaluate the correct characterisation of the arrangement.