Affiliate program: Legal framework and contracts

Affiliate marketing is establishing itself as a major growth lever for e-retailers, generating on average 15 to 25% of the turnover of successful sites. However, behind this commercial opportunity lies a dense legal framework that advertisers must master to avoid administrative sanctions, contractual disputes and reputational damage. Between the Consumer Code, the GDPR, law n°2023-451 of June 9, 2023 governing commercial influence and the European DSA/DMA directives, legally structuring your affiliation program has become essential.

The legal foundations of the affiliation contract

The affiliation contract mainly falls under common contract law (articles 1101 et seq. of the Civil Code) and generally qualifies as a contract for the provision of commercial services. It must specify: the identity of the parties, the nature of the products or services promoted, the remuneration terms (CPA, CPL, CPC), the duration of the attribution cookie, the termination conditions, as well as the clauses relating to intellectual property on the marketing materials provided.

Since the judgment of the Court of Cassation of March 20, 2019, reclassification into an employment contract remains a risk when the relationship of subordination is characterized. Advertisers must therefore take care to preserve the independence of the affiliate in the choice of its promotional methods, while strictly regulating prohibited practices (brand bidding, unauthorized cashback, non-compliant email marketing).

Transparency obligations and the Influence 2023 law

The law of June 9, 2023 has profoundly transformed the affiliation landscape when it involves content creators. All commercial communication must now be clearly identified by the words “Advertising” or “Commercial collaboration” in a legible manner and inseparable from the content. Article 5 of this law requires a written contract as soon as the remuneration exceeds a threshold fixed by decree, with mandatory information under penalty of nullity.

The DSA (Digital Services Act) regulation, applicable since February 2024, also strengthens traceability obligations: affiliation platforms must retain the information of professional affiliates and allow their identification. The advertiser remains jointly and severally responsible for the unfair practices of its affiliates within the meaning of article L.121-1 of the Consumer Code.

GDPR and affiliate data management

Affiliate tracking is based on cookies and identifiers subject to the GDPR and the ePrivacy directive. The 2020 CNIL recommendations require the collection of explicit consent before any placement of non-essential attribution cookies. The contract must clearly designate the roles: the advertiser is generally responsible for processing, while the affiliate platform and the affiliate may be co-responsible or subcontractors depending on the technical configuration.

A GDPR compliance clause is essential, detailing the purposes, retention periods (13 months maximum for marketing cookies), security measures and procedures in the event of a data breach.

Essential contractual clauses to secure

A robust affiliation contract must include: a reasonable non-competition clause, a territorial exclusivity clause if relevant, penalties in the event of fraud (false traffic, unauthorized incentive), a right to audit performance, and a competent jurisdiction clause. The remuneration clause deserves particular attention: precise definition of the generating event, validation times (typically 30 to 60 days), invoicing methods and processing of product returns.

Conclusion

Legally structuring your affiliate program is no longer an option but a strategic necessity. A well-written contract protects the advertiser against abuses, clarifies mutual expectations and facilitates the sustainable growth of the program. Investing in specialized legal support from the start avoids costly litigation and strengthens the confidence of professional affiliates.