Affiliate Programme: Legal Framework and Contracts 2026

Affiliation is based on a contract that has no legal definition of its own. It is a service provision contract, often close to business introduction, whose regime is inferred from what the parties actually organised — not from the title they gave it. This absence of a dedicated framework is precisely what creates the two main risks: reclassification of the contract, and the advertiser's liability being engaged for affiliate practices it does not control.

Contract classification

The affiliate contract organises the provision of a link or medium by a publisher, in exchange for remuneration linked to the results obtained.

Two reclassifications loom, and they have very different consequences:

Commercial agent. This status applies to anyone who negotiates and possibly concludes contracts in the name and on behalf of a principal, on a permanent basis. It gives rise to a termination indemnity that is often substantial. An affiliate who merely distributes a link does not fall within this definition; one who actively approaches identified customers on behalf of the advertiser may come close to it.

Employment contract. It is characterised by a relationship of subordination: precise instructions, control over performance, sanctions for failures. A programme that imposes publication schedules, approves every piece of content and penalises deviations creates the hallmarks of subordination.

Prevention comes down to one principle: the affiliate must retain genuine autonomy in organising its activity. The obligations imposed must relate to compliance with the law and protection of the brand image, not to the methods of performance.

What the contract must provide for

Six stipulations avoid the bulk of disputes:

• The remuneration: basis of calculation, triggering event, attribution window, treatment of cancelled or refunded orders.
• The attribution period linked to the tracker, with the applicable rule in the event of multiple sources.
• The affiliate's compliance obligations: advertising transparency, respect for the brand, express prohibitions.
• The prohibited practices: bidding on the brand name, unsolicited emails, misleading claims.
• The arrangements for monitoring and disputing statistics.
• The duration, termination and treatment of outstanding commissions at the time of termination.

The point most often overlooked is the treatment of commissions earned but not paid as at the termination date. In the absence of a clause, the discussion proceeds on the basis of general law, the outcome of which is uncertain.

Advertising transparency, a matter of public policy

This is the area where risk has shifted most in recent years.

Any content published in exchange for a benefit must enable the public to identify its commercial nature. An explicit mention, legible and not buried in a list of keywords, is required. Failure to identify it constitutes a misleading commercial practice, which is criminally sanctioned.

The decisive point for an advertiser is that its liability may be engaged for the practices of its affiliates, as soon as it derives a benefit from them and has the means to oversee them. A contractual clause prohibiting misleading practices is not sufficient on its own: effective control must be demonstrated — content review, a reporting mechanism, exclusion of affiliates in breach.

Claims made about products also bind the advertiser in the same way as its own communications, which ties in with the information requirements set out in our guide on launching an online shop.

Trackers, data and taxation

Affiliate trackers fall under the prior consent regime, in the same way as advertising trackers. They benefit from no exemption on account of their commercial purpose, and placing them before the user has made any choice is a clear breach — a subject covered in our article on cookies and trackers.

This constraint has a direct effect on the model: a user who refuses trackers cannot be attributed to an affiliate. The contract must set out how this case is handled, failing which a dispute over statistics is certain.

From a tax perspective, the affiliate carries on an independent activity and invoices with VAT where liable. Territoriality rules apply where the parties are established in different states, with reverse charge applying to supplies between taxable persons.

Usage scenarios

Launching a programme. Draft the programme terms as an enforceable contract and have their acceptance formally recorded, rather than simply publishing them on a page. The acceptance mechanism is the same as for terms and conditions: without proof of acceptance, the obligations imposed on affiliates are difficult to enforce.

High-contributing affiliate. When the relationship becomes exclusive and the affiliate approaches identified customers, the risk of reclassification as a commercial agent becomes real. A separate, negotiated master agreement is preferable to a poorly adapted standard programme.

Disputing statistics. Agree in advance on the authoritative counting source and the time limit for disputes. Without a stipulation, every discrepancy becomes a negotiation.

Frequently asked questions

Must an affiliate contract be in writing? No text requires it, but a written agreement is essential: it is what sets out the remuneration, the prohibited practices and the treatment of commissions on termination.

Is the advertiser liable for the practices of its affiliates? It may be, as soon as it derives a benefit from the distribution and has the means to oversee it. A contractual clause is not enough without effective control.

Must the commercial nature of content be disclosed? Yes, explicitly and legibly. Otherwise, the content constitutes a misleading commercial practice, which is criminally sanctioned.

Do affiliate trackers require consent? Yes, with no possible exemption on account of their commercial purpose. A user who refuses cannot be attributed to an affiliate, which the contract must anticipate.

Can an affiliate be reclassified as an employee? Yes, if a relationship of subordination is established: precise instructions, control over performance, sanctions. Genuine autonomy in organising the activity is the safeguard.

What happens to commissions on termination? This depends entirely on the contract. In the absence of a clause, the discussion falls under general law and the outcome is uncertain — hence the value of stipulating it.

Key takeaways

Two risks shape this subject, and neither is addressed by a clause alone.

Reclassification is prevented by the reality of the relationship: an affiliate autonomous in organising its activity, overseen for compliance with the law and not for its methods of performance. A contract that describes an autonomy that practice contradicts offers no protection.

The advertiser's liability for its affiliates' practices is prevented by demonstrable control: content review, a reporting mechanism, effective exclusions. This is what a court examines, far more than clauses prohibiting misleading practices. The reasoning is the same as that applicable to any commercial contract between businesses: what matters is what can be established, not what was written.