This recent(ish) NAD Decision in a Fast Track SWIFT case raises some interesting issues indeed.  Upon challenge by the advertiser’s competitor, NAD reviewed advertising for Datarails, Inc, a provider of financial planning and analysis software solutions, on The Finance Weekly website. The Financial Weekly website covers various financial topics and appears to be an independent editorial site. The website also ranks and reviews financial planning and analysis software solutions, ranking Datarails’ solution the highest.  Datarails’ competitor, Cube Planning, challenged the content promoting and ranking Datarails, arguing that it lacks adequate disclosure of Datarails' affiliation with the website.

And what is Datarails’ affiliation with The Finance Weekly?  Datarails advertises on the website.  It does not own or operate it, but it is apparently the sole advertiser.  NAD determined that this relationship between the advertiser and publisher creates a “material connection” that requires disclosure.  This finding is consistent with many earlier NAD decisions addressing review sites and the need to disclose relationships with advertisers whose products and services are reviewed. 

But what else?  NAD determined that it was Datarails’ obligation to determine whether The Finance Weekly’s rankings and ratings were reliable.  Citing the FTC’s endorsement guidelines with respect to expert endorsements, NAD determined that Datarails had an obligation to ensure that the expert endorsement was “truthful.” NAD found that it was on the advertiser to ensure that any “expert ranking” would be “from an expert (1) with the correct experience to review the service; (2) that reviews the product or service using its expertise to examine competing products or services; and (3) concludes the product or services are superior to other products or services with respect to the features reviewed.” 

In other words, the advertiser couldn’t plead ignorance about the publisher’s ranking methodology if it wanted to rely on it. Is NAD suggesting that Datarails should have prevented The Finance Weekly from including it in the ranking if it could not ensure that The Finance Weekly’s methodology was reliable? If so, this begs the question of whether an advertiser can (or should) tell a publisher who and how to rank and review.  If a publisher maintains true editorial independence, it should not take direction from its advertisers about who to include in its ranking and reviews.

I can’t help but think that NAD was skeptical about The Finance Weekly’s editorial independence, particularly its independence from its sole advertiser, although this is not said explicitly in the Decision. Otherwise, this Decision could have some pretty far-reaching implications about the relationship between an advertiser and a publisher. Unfortunately, since this case was adjudicated through SWIFT, the record is limited and the Decision short. Stay tuned for more from NAD on this topic. 

NAD Fast-Track SWIFT Case #7359 (August 2024)