Clause library
Non-disparagement clause, explained
A non-disparagementA non-disparagement clause stops a party from making damaging statements about the other, whether or not the statement is also a breach of confidentiality. It is not a gag on a statutory whistleblowing disclosure. Mutual clauses are easier to defend than one-way ones. Keep the wording to smear and malice, not to a true review of the work.More in the glossary clause is a promise not to make damaging public statements about the other side, usually after the job, with named carve-outs.
Last updated 28 October 2026
What does a non-disparagement clause do?
A non-disparagement clause is a promise not to make damaging public statements about the other side. It sits next to confidentialityConfidentiality is a promise to keep shared information private and to use it only for the agreed purpose.More in the glossary and, for individuals, next to defamation. In England and Wales a statement is not defamatory unless it causes or is likely to cause serious harm (Defamation Act 2013 s.1). We write a narrow, post-term duty, with a public-interest carve-out.
What does non-disparagement actually ban?
Name the acts: public statements, reviews, social posts, that disparage the other party’s business, officers or work. A clause that bans any negative comment, including a true one to a regulator, is the shape that is attacked. Keep it to public disparagement, not to a private complaint or a required report. Pair it with confidentiality so secrets and reputation are not mixed into one sentence.
How does this sit next to defamation law?
Defamation Act 2013 s.1 sets a serious-harm threshold; for a trading company, that harm must be serious financial loss (s.1(2)). Truth, honest opinion and publication on a matter of public interest remain defences (ss.2–4). A non-disparagement promise can still bind as a contract term even where a tweet would not be defamatory. Do not use it to gag a genuine public-interest disclosure. Write the carve-out.
Should it be mutual?
Yes, on a services job between businesses. A one-way gag on the supplier, with a free hand for the client’s case study, is the usual overreach. Mutual duties, for a named period after the end date, are the cleaner trade. Individuals and companies are not the same claimant under s.1; keep the wording to the parties, not to every employee by name, unless that is the real deal.
What must be carved out?
Statements required by law, to a regulator or a court; confidential settlement talks; honest reviews that state facts; and disclosures in the public interest. A non-disparagement line in a settlement is common. A perpetual worldwide gag on a three-week freelance job is not. If words look like a restraint, severability will not always save them. Keep the period short and the acts named.
Example wording
Example · our own drafting
For [12] months after this agreement ends, neither party will make a public statement that disparages the other party’s business or officers. This clause does not stop a statement that is required by law, made to a regulator or a court, made in the public interest, or a good-faith statement of fact in a private dispute process. This clause is mutual and sits next to confidentiality; it does not limit a claim in defamation.
In Plain English
For a year after this ends, neither side will publicly run down the other’s business or people. That does not stop a statement the law requires, a report to a regulator or a court, a public-interest disclosure, or a good-faith factual account in a private dispute. Both sides give the same promise. Secrets are still covered by confidentiality. Defamation law still applies.
What should you watch for?
| Point | Watch for | Push for |
|---|---|---|
| Scope | Any negative comment, including a true report to a regulator. | Public disparagement of the business or officers, with named carve-outs. |
| Mutual | A gag on the supplier only, while the client publishes a case study. | The same duty on both sides, for a named period. |
| Time | A perpetual duty on a short freelance job. | Months after the end date, not forever. |
| Defamation | A clause that pretends to replace Defamation Act 2013 s.1. | A contract promise that sits next to defamation, not in place of it. |
| Reviews | A ban on any review, including a factual one. | A carve-out for good-faith statements of fact, and for public interest. |
Which contracts include it?
Lex includes this clause in, among others:
- Influencer agreement
- Services agreement (master services agreementA master services agreement (MSA) sets the legal terms for an ongoing relationship, with each project then agreed in a separate statement of work.More in the glossary)
- Consulting agreement
What does the law say?
A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. Harm to the reputation of a body that trades for profit is not serious harm unless it has caused or is likely to cause the body serious financial loss.
Source: Defamation Act 2013, s.1Checked 3 November 2026Pending lawyer review
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Frequently asked questions
What does a non-disparagement clause mean?
It is a promise not to make damaging public statements about the other side, usually for a period after the job. It is a contract term. It does not replace defamation law.
What does non-disparagement actually ban?
Name the acts: public statements, reviews or posts that disparage the other party’s business, officers or work. Do not use it to block a required report to a regulator or a court.
How does this sit next to defamation?
Defamation Act 2013 s.1 requires serious harm (and serious financial loss for a trading company). A non-disparagement promise can still bind even where a statement would not be defamatory. Keep a public-interest carve-out. See ss.2–4 for truth, honest opinion and public interest.
Should a non-disparagement clause be mutual?
Yes, on a services job between businesses. A one-way gag on the supplier is the usual overreach. Mutual duties for a named period after the end date are the cleaner trade.
What should be carved out of a non-disparagement clause?
Statements required by law, reports to a regulator or a court, public-interest disclosures, and good-faith statements of fact in a private dispute process. Keep the period short and the acts named.
Sources
- Defamation Act 2013, s.1Checked 3 November 2026Pending lawyer review
Related
The legal wording governsLast reviewed 28 October 2026Pending lawyer review