Using and Drafting Non-Disparagement Agreements

We live in an age where someone with a bad opinion about you, legitimate or not, or based in fact or not, can bring down your business. A simple opinion can be heard on social media and multiple online platforms.

While you can sue for absolute falsities, you really cannot sue just because someone has a bad opinion of your business. So, that may lead you to try to avoid people saying things that are negative about you, before those comments reach the public ear.

Non-Disparagement Clauses

To some extent, this can be done through the use of non-disparagement clauses. A non-disparagement clause is a part of an agreement (although it can also stand as its own separate contract or agreement), which prohibits the other side from saying or writing anything disparaging or negative about your business.

The comments can be written or verbal. They can be posted online or just emailed to someone. It doesn’t matter. Any negative comment about your business, is prohibited by the non-disparagement agreement.

When to Use Them

You can only use these clauses, where someone is signing a contract with you. You can have employees or potential employees sign it, or include them in any type of settlement agreement you might enter into, but as far as your customers in the general public, that may be harder, unless you’re in a business where contracts with your customers are involved.

The non-disparagement clause doesn’t have to just restrict the other person from speaking about a particular event or the person’s particular experience with your business. The agreement can prohibit any general negative opinion about your business. Unlike with defamation, truth doesn’t matter—even if the other person tells the truth about something negative, the non-disparagement clause would make that communication illegal.

Of course, for more private conversations, such as your ex employee complaining to his wife at the dinner table about how awful your company was to work with—are harder to spot, and stop, then commentary made online would be.

Drafting the Non-Disparagement Clause

Remember that if you are going to have someone, especially employees, sign a non-disparagement clause, make sure they get something in return. Non-disparagement agreements are contracts like any other, that require valid consideration.

You also want to make sure that your non-disparagement clauses have some built in penalty, like a liquidated damages penalty. This is to prevent you from having to prove actual damages or losses to get damages—losses that can be hard to quantify or calculate, if someone starts speaking ill about your business in violation of the non-disparagement clause.

You’ll also want to include provisions requiring the takedown or removal of comments or opinions posted online or in the media or in any public forum, so that if you need to sue, you have an avenue for injunctive relief to order the negative comments be removed.

Let us help you with your business agreements. Call our Fort Lauderdale business litigation attorneys at Sweeney Law P.A. at 954-440-3993 for help.

Sources:

themuse.com/advice/non-disparagement-clause-agreement-sample#:~:text=What%20Is%20a%20Non%2DDisparagement,in%20any%20form%20of%20communication.

contractscounsel.com/g/44/us/non-disparagement-clause