Affiliate program: Legal framework and contracts 2026

Affiliation is based on a contract that has no specific legal definition. It is a service-provision contract, often close to business introduction, whose legal regime is determined by what the parties actually organised — not by the label 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 for affiliate practices it does not control.

Classifying the contract

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

Two reclassifications loom, and they have very different consequences:

Commercial agent. This status applies to anyone who negotiates and, where applicable, 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 solicits identified customers on behalf of the advertiser may come close to it.

Employment contract. This is characterised by a relationship of subordination: precise instructions, control over performance, and sanctions for failures. A program that imposes publication schedules, approves each 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 manner of performance.

What the contract must provide for

Six provisions avoid most disputes:

• The compensation: calculation basis, triggering event, attribution window, treatment of cancelled or refunded orders.
• The attribution period linked to the tracker, with the rule applicable in case 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 terms for monitoring 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 yet paid at the date of termination. In the absence of a clause, the discussion proceeds under general law, with an uncertain outcome.

Advertising transparency, a matter of public policy

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

Any content published in exchange for a benefit must allow the public to identify its commercial nature. An explicit, legible mention, not buried in a list of keywords, is required. Failure to disclose this 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 alone is not enough: it must demonstrate effective oversight — content review, a reporting mechanism, exclusion of affiliates in breach.

Claims relating to products also bind the advertiser in the same way as its own communications, which aligns 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 the basis of their commercial purpose, and placing them before any user choice is a clear breach — a topic covered in our article on cookies and trackers.

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

From a tax standpoint, the affiliate carries out an independent activity and invoices with VAT where subject to it. Territoriality rules apply when the parties are established in different states, with reverse charge for supplies between taxable persons.

Usage scenarios

Launching a program. Draft the program terms as an enforceable 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-contribution affiliate. When the relationship becomes exclusive and the affiliate solicits identified customers, the risk of reclassification as a commercial agent becomes real. A separate, negotiated framework agreement is preferable to a poorly adapted standard program.

Disputing statistics. Agree in advance on which counting source is 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 law requires it, but a written agreement is essential: it is what sets out compensation, prohibited practices and the fate of commissions upon termination.

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

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 the basis 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 upon 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 this topic, and neither is addressed by a single clause.

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

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