With the rise of digital influencers as central figures in modern marketing, in-house lawyers are facing new challenges to ensure legal certainty for their companies. The internet, especially Web 2.0, has transformed the advertising landscape, allowing individuals to become powerful allies for brands through a direct and authentic connection with the public. In this context, exclusivity contracts with digital influencers have become a frequent practice - but also a source of legal doubts, especially with regard to the characterization (or not) of an employment relationship.
Understanding how the Consolidation of Labor Laws (CLT) and recent case law address this issue is essential for mitigating risks and structuring strategic partnerships with influencers, without compromising the company's legal security. This article explores the main aspects of this issue, providing practical insights for drafting solid commercial contracts.
According to the Consolidated Labor Laws (CLT), an employment relationship can only be established when the following elements are simultaneously present: personality, habituality, onerousness and subordination. Among these, subordination - especially under its modern interpretation - has been the main point of debate in contracts with digital influencers.
While personality and habituality are common in contracts with influencers due to the nature of their work, and onerousness is often present in the form of payments or benefits, subordination is not always present. It is this absence that, in general, disqualifies the employment relationship. And sometimes subordination appears subtly in practice, bringing the possibility of recognizing the employment relationship.
In the legal context, subordination is interpreted in different ways: legal, technical, economic or structural. In cases involving digital influencers, case law has indicated that when there is creative autonomy and a lack of direct control, subordination does not occur. This is because the freedom to determine content, working hours and style is essential for the influencer's authenticity - a critical factor for the success of these partnerships.
As an example, the Regional Labor Court of the 2nd Region ruled that there was no employment relationship between an influencer and a contracting company, pointing out that the requirements of subordination were not met in the contract which had its legality confirmed by the complainant at the hearing:
"In the specific case, the requirements characterizing the employment relationship were not met, under the terms of articles 2 and 3 of the CLT. Sentence upheld."
(TRT-2 - ROT: 1000878-83.2022.5.02.0444, Rapporteur: Lígia da Graça Pires, 11th Panel)
In addition, the Federal Supreme Court (STF) has reinforced the legitimacy of contracts with influencers and the absence of an employment relationship, as long as autonomy is maintained and there is no fraud.
Drawing up robust contracts is essential to avoid labor risks. The following points should be considered when structuring contracts with digital influencers:
Preservation of Autonomy: Include clauses that reinforce the influencer's creative and operational freedom, avoiding detailed guidelines that could characterize subordination.
Description of Services: Be clear about the scope of work, making it explicit that this is a business relationship, not employment.
Remuneration and Benefits: Avoid practices that suggest exclusive economic dependence, such as regular monthly payments typical of an employment relationship.
Term and Exclusivity: If you opt for exclusivity, establish it in such a way as not to compromise the influencer's independence in their other activities.
Anti-fraud clauses: Include provisions that reaffirm the commercial nature of the contract, mentioning recent case law to reinforce legal certainty.
Hiring digital influencers can be a powerful marketing strategy for your company. However, lack of attention to the legal aspects of these contracts can lead to labor disputes, resulting in unexpected costs and damage to the brand's reputation.
A well-drafted contract not only protects the company from litigation, but also allows it to make the most of influencers' creative potential, without compromising the autonomy that is essential to the success of these partnerships.
It is also important that the contract reflects reality, because if there is any kind of subordination in practice, even if the contract provides for ample freedom, there is a high risk of the employment relationship being recognized.
Therefore, have a good practice and an excellent contract with your influencers to avoid labor risks.
*Naiara Insauriaga, a labor lawyer at Barcelos Tucunduva Advogados, has a postgraduate degree in Civil Procedural Law.
