In general, the regulation applies to natural and legal persons who publish videos on the internet via platforms – now including influencers, albeit only those of “special importance”. Legally the latter are defined as those influencers whose annual income from their activities exceeds EUR 300,000, who have more than 2,000,000 followers and who publish more than 24 videos per year. Evidently, the majority of influencers are excluded from the scope of this normative change in interest of consumer protection.
However, these conditions are not relevant for assessing whether an influencer is a commercial agent (agente). The decisive factor for the classification is the specific form of the contractual relationship with the company whose products or services the influencer promotes.
The Spanish Law on Agency Contracts (Ley sobre Contrato de Agencia, LCA) defines the commercial agent as a natural or legal person – the commercial agent – who, by means of an agency contract, undertakes, vis-à-vis another entrepreneur, to permanently or continuously promote commercial transactions or operations for the company, as an independent intermediary, or to promote and conclude these on behalf of the company, in return for payment but without assuming the risks (and rewards) associated with the business.
All these characteristics can be found in an influencer. For example, influencers often have influencer agreements with companies in which they agree to advertise specific products of a particular brand in the videos they publish. As part of this, they give discount codes to their followers that the company can use to determine and register the sales brokered by the influencer. The influencer then receives a contractually agreed commission for their intermediation.
The legal classification of the influencer as a commercial agent has considerable consequences for the contractual relationship, since the provisions of the LCA, almost all of which are mandatory, apply. This holds particularly true for the company’s obligation to pay compensation in the moment of termination of the contract.
So far, the only court decision on this matter was handed down in March 2024 by an Italian court. In Germany, too, influencer contracts have been the object of legal disputes, albeit in a different context. In my opinion, it is only a matter of time before influencers in Spain also recognise the legal perspectives of the LCA and start bringing the corresponding claims.