Non-Disparagement Clause Explained: Six Versions to Check Before You Sign
This page is general information, not legal advice.
A non-disparagement clause is a promise not to say negative things about the other party. You'll find it in severance agreements, employment contracts, settlement deals, NDAs, brand deals and some customer terms. It can sound harmless. But depending on how it's written, it can stop you from posting an honest review, answering an interviewer's question or talking to a lawyer, and it can stay in force for the rest of your life. This page covers six common versions that move risk onto you. For each one you get an illustrative example, why it matters, and wording you can propose. Courts and lawmakers in different places treat these clauses very differently, and some limits apply only to certain contracts or certain people, so the rules where you live matter.
The example clauses below are illustrative. They are not taken from any real company's agreement.
1. A promise that only runs one way
A typical clause might read: "Employee shall not make, publish or communicate any disparaging remarks concerning Company or its officers, directors, employees, products or services."
Why it works against you
You make the promise, and the other side promises nothing. Its managers and staff stay free to talk about you to future employers, clients or the press, and you can't push back in kind. This is the most common version, especially in exit paperwork. See severance agreement red flags.
What to ask for instead
Sample wording to propose: "The parties will not make disparaging statements about each other. Company will instruct [named executives] not to disparage Employee and will respond to reference requests by confirming only dates of employment and job title."
2. "Disparaging" defined so broadly it covers the truth
A typical clause might read: "Disparaging includes any statement that could reasonably be expected to reflect negatively on Company, whether or not such statement is true."
Why it works against you
Under a definition like this, an accurate one-star review, a fair complaint or a plain answer about why you left could all count as a breach. You may not know where the line is until someone accuses you of crossing it. Whether a contract can stop truthful statements, and in what settings, depends on the jurisdiction.
What to ask for instead
Sample wording to propose: "Disparaging means a statement of fact that the speaker knows to be false and that is made to harm the other party's reputation. Truthful statements and good-faith opinions are not disparaging."
3. No end date
A typical clause might read: "The obligations in this Section shall survive termination of this Agreement and continue indefinitely."
Why it works against you
A short job or project can leave you under a gag that lasts for decades. Years later you may not remember the clause, but the other side can still use it. Other confidentiality duties often get the same open-ended survival language. See confidentiality survival clauses explained.
What to ask for instead
Sample wording to propose: "This Section expires [two] years after the Effective Date or the end of the engagement, whichever is later."
4. No carve-outs for legal and protected communications
A typical clause might read: "Without limitation, Employee shall not make any statement regarding Company to any person or entity."
Why it works against you
"Any person or entity" can include a lawyer, a tax adviser, a spouse, a court or a government agency. Many places limit how far a contract can block you from reporting wrongdoing, giving testimony or discussing working conditions. A clause that ignores those limits may still scare you into silence. NDAs often carry the same gap. See NDA red flags.
What to ask for instead
Sample wording to propose: "Nothing in this Agreement prevents either party from communicating with a government agency, giving truthful testimony, complying with law or legal process, or speaking privately with family members or legal, tax or financial advisers."
5. Harsh penalties for any breach
A typical clause might read: "Upon any breach of this Section, as determined by Company, Employee shall pay Company liquidated damages of [amount] per occurrence and shall forfeit all payments made under this Agreement."
Why it works against you
The other side decides whether you broke the rule, and a single comment can trigger a fixed penalty plus the loss of money you were already paid. That can far exceed any real harm, and it adds pressure to stay quiet about anything. See liquidated damages clauses explained and clawback clauses explained.
What to ask for instead
Sample wording to propose: "Before seeking any remedy, the non-breaching party will give written notice and 15 days to cure. Remedies are limited to actual damages proven, and no payment already made will be forfeited."
6. A gag in a brand deal or customer terms
A typical clause might read: "Creator agrees not to make any statement, publicly or privately, that is critical of Brand or its products during the Term or at any time thereafter."
Why it works against you
For creators and freelancers, your audience trusts your honest opinion. A clause like this can stop you from warning followers about a product problem or describing a bad working experience, long after the deal ends. Similar language sometimes appears in customer terms aimed at reviews. Some places restrict clauses that punish consumers for honest reviews, so check the law where you are. See influencer brand deal contract red flags.
What to ask for instead
Sample wording to propose: "During the Term, Creator will not publish knowingly false statements about Brand. This Section does not limit honest reviews, required disclosures or statements made after the Term ends."
Also worth a look
Check whether disputes over the clause go to private arbitration (see mandatory arbitration clauses explained), and whether the agreement also adds a confidentiality clause covering its own terms. Look at who counts as "Company". Affiliates, investors and future owners can quietly widen the list of people you can't criticize.
Scan your own agreement free
One broad definition or one missing carve-out can change what you're agreeing to. Upload your contract to the ScanMyTerms employment contract review as a PDF, DOCX, TXT or MD file, or photograph it. In about a minute you get a list of clauses that work against you, each with a risk level, the exact wording, why it hurts and how to change it. The free preview needs no sign-up and shows the risk count and the first two findings. The full report is $5. ScanMyTerms does not use your documents to train AI models, and reports are deleted after 7 days.
This page is general information, not legal advice. The rules on non-disparagement clauses vary by jurisdiction, so for decisions about a specific agreement, talk to a qualified lawyer where you live.
Sources
- All clause examples on this page are illustrative and written for this guide. They are not quoted from any real company's agreement.
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