NewsGuard takes the Omnicom-IPG condition to the appeals court

News ratings service NewsGuard argued before a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit that it is entitled to an injunction blocking the Federal Trade Commission from enforcing a condition of the Omnicom-Interpublic merger. The condition, agreed to by Omnicom, bars the merged agency from directing ad buys based on a media company's "adherence to journalistic standards or ethics established or set by a third party" except at a client's request. Attorney Robert Corn-Revere told Judges Sri Srinivasan, Patricia Millett and Bradley Garcia that the restriction causes "irreparable injury" to NewsGuard and breaches the First Amendment, arguing that "the FTC gets both of these very basic concepts backwards in this case and sets out to police the marketplace of ideas." Interpublic had been a NewsGuard client, but the contract was not renewed in April after the merger cleared. The FTC imposed near-identical conditions on Dentsu, Publicis and WPP.

The crux

The U.S. regulator has turned a brand-safety exclusion list into an antitrust subject, and the sell side is the accidental casualty: publishers defunded by coordinated exclusion lists now depend on a court to say which exclusions are lawful.

Sell-side read

Brand-safety and suitability exclusions are becoming a legal risk surface, not just a commercial one. Publishers should document their own suitability certifications and refuse blanket third-party floors as a default term, because the enforcement tide has turned against the coordinated list, not the publisher.

Watch

the D.C. Circuit ruling; a NewsGuard win would unwind the template condition across four holding companies at once.