Glossary
Non-disparagement
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 stops a party from making damaging statements about the other, whether or not the statement is also a breach of confidentialityConfidentiality is a promise to keep shared information private and to use it only for the agreed purpose.More in the glossary. 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.
Last updated 28 October 2026
These clauses arrive in settlement papers and, increasingly, in freelance retainerA retainer is an arrangement where a client pays a regular fee to secure a set amount of time or ongoing access to a supplier.More in the glossary. They sit beside confidentiality but they are wider: you can disparage without leaking a secret. A one-way clause that stops a supplier leaving an honest review, while the client can still brief the market, is the version that gets pushed back.
We draft them mutual, narrow, and subject to law. Lex will carve out disclosures required by law, regulators, advisers and the Public Interest Disclosure Act 1998. A true statement to a court or an insurer is not disparagement. Without prejudice settlement talks stay in their own box.
Is non-disparagement the same as confidentiality?
No. Confidentiality is about information. Non-disparagement is about reputation. You can breach one without the other. A public “they missed every deadline” can be non-disparagement even if no confidential file left the building. Draft them as two clauses, not one blurry paragraph.
Can it stop a true review?
A clause that bans any negative statement, including a true one, is the aggressive form. A clause that bans false or malicious statements tracks defamation more closely and is easier to live with. The Defamation Act 2013 s.1 serious-harm test is the background law on published smears; your contract cannot make a true review into a tort, but it can make it a breach.
Should it be mutual?
Yes. A one-way gag on the supplier, while the client briefs every agency in town, is what people refuse. Mutual clauses, limited to the term plus a short tail, are the version that signs.
What must always be carved out?
Whistleblowing, reporting crime, answering a court or regulator, telling your insurer or lawyer, and statements both sides have already agreed in writing. Do not draft a clause that would make a protected disclosure a breach. That is how the clause is ignored when it matters.
A worked example
A settlement on a cancelled film includes a mutual non-disparagement line: neither side will make a false or malicious public statement about the other for 12 months, with carve-outs for advisers, insurers and any disclosure required by law. The director may still tell a future client, privately and truly, that the dates moved. They may not post a smear thread. The studio may not brief the market that the director “walked off”.
How it shows up in a contract
Sample wording · our own drafting
Neither party will make a false or malicious public statement about the other during the Term and for 12 months after. This clause does not restrict a disclosure required by law, a protected disclosure, or a statement to a professional adviser, insurer or a court. It is not a confidentiality obligation.
In Plain English
Neither of you publicly smears the other, during the job and for a year after. You can still tell the truth to a lawyer, an insurer, a court or a regulator. This is not the secrecy clause.
Common mistakes
- Writing a one-way gag that only binds the supplier.
- Banning any negative statement, including a true private reference.
- Forgetting the whistleblowing and “required by law” carve-outs.
- Merging this into the confidentiality clause so neither duty is clear.
Frequently asked questions
What is a non-disparagement clause?
A promise not to make damaging statements about the other side. It is wider than confidentiality and is not a gag on a protected disclosure.
Is non-disparagement the same as confidentiality?
No. Confidentiality is about information. Non-disparagement is about reputation. Draft them separately. See /glossary/confidentiality.
Can it stop a true review?
A clause can make a true public review a breach even if it is not defamation. Narrow the wording to false or malicious statements if you want it to sign.
Should it be mutual?
Yes. A one-way gag is the version people refuse. Keep a short tail after the term and carve out law, regulators and advisers.
Related
The legal wording governsLast reviewed 28 October 2026Pending lawyer review