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 deduced from what the parties have actually organised — not from the title they have given 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.

Classification of the contract

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

Two reclassifications lie in wait, and they have very different consequences:

The commercial agent. This status applies to someone 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 canvasses identified clients on behalf of the advertiser may come close to it.

The employment contract. It is characterised by a relationship of subordination: precise instructions, control over performance, sanctioning of failures. A programme that imposes publication schedules, validates 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 the brand image, not to the manner of performance.

What the contract must provide for

Six stipulations avoid most disputes:

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

The point most often overlooked is the fate of commissions earned but not paid as of 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 the risk has shifted the most in recent years.

Any content disseminated 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 punishable.

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

Claims relating to products also engage 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 store.

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 depositing them before the user has made any choice is a clear-cut breach — a subject developed 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 provide for how this case is handled, failing which a dispute over statistics is certain.

On the tax front, the affiliate carries out an independent activity and invoices with VAT where liable for it. Territoriality rules apply where the parties are established in different States, with reverse charge for supplies between taxable persons.

Usage scenarios

Launching a programme. Draft the programme terms as a binding contract and have their acceptance recorded, rather than merely publishing them on a page. The acceptance mechanism is the same as for general 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 canvasses identified clients, the risk of reclassification as a commercial agent becomes real. A separate, negotiated framework contract is preferable to a poorly adjusted standard programme.

Disputing statistics. Set in advance the counting source that will be authoritative and the deadline for disputing it. Without a stipulation, every discrepancy becomes a negotiation.

Frequently asked questions

Must an affiliation contract be in writing? No legal text requires it, but a written document is essential: it is what fixes the remuneration, the prohibited practices and the fate of commissions on termination.

Is the advertiser liable for the practices of its affiliates? It may be, as soon as it derives profit from the dissemination 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. Failing this, the content falls within misleading commercial practice, which is criminally punishable.

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 structure the 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 manner of performance. A contract describing an autonomy that practice contradicts offers no protection.

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