Ask the BattleTested Lawyer: Should I Put a Non-Disparagement Clause in My Contracts?

Should I put a non-disparagement clause in my contracts? A founder asked me this after a client relationship ended badly and the client started posting about him — not lies, exactly, but a steady drip of one-star framing that was costing him referrals. He wanted a clause that would shut it down going forward. After 20 years litigating, I can tell you a non-disparagement clause is a genuinely useful tool that founders routinely misunderstand, misuse, and occasionally make illegal without realizing it. Here's how that conversation went.

What does a non-disparagement clause actually do?

It's a promise not to make statements that damage the other side's reputation. In a business contract, both parties agree they won't publicly trash each other — not in reviews, not on social media, not to the press. It's a contractual restraint on speech, which is exactly why it's powerful and exactly why it has to be handled with care. Done right, it gives you a clean remedy when a relationship ends and someone wants to burn the house down on the way out. Done carelessly, it's either unenforceable or, worse, a clause that exposes you to liability you never saw coming. The tool is fine. The way most people reach for it is the problem.

Where do founders get this wrong?

They write it too broadly, and breadth is what gets these clauses thrown out. A clause that tries to bar someone from ever saying anything negative, forever, about anything, starts to look less like a reasonable business term and more like a gag order — and courts are skeptical of sweeping restraints on speech. The other classic mistake is trying to use non-disparagement to suppress the truth, or to stop someone from reporting genuine wrongdoing. Silencing honest reviews from ordinary consumers and blocking people from reporting real misconduct are exactly the kinds of overreach the law has moved to restrict. A clause aimed at truthful complaints isn't a strong clause. It's a liability dressed up as protection.

Is it even legal to stop customers from leaving bad reviews?

This is the trap I most want founders to hear. There is a strong and growing legal hostility to contract terms that penalize ordinary consumers for posting honest reviews of a business. Provisions that try to gag customers from truthful negative feedback have been targeted specifically, and leaning on one can turn your own contract into the source of your liability rather than a shield. So the answer depends heavily on who's on the other side. A negotiated non-disparagement term between two businesses or in a settlement is a very different animal from a form clause buried in your consumer terms trying to muzzle unhappy buyers. Treat those as two separate worlds, because the law does.

So when is a non-disparagement clause the right call?

When it's mutual, narrow, and tied to a real relationship — not aimed at silencing consumers. It works well between business partners, in a co-founder or vendor arrangement, in a settlement that ends a dispute, or in a separation with someone who had real access to your business. In those settings, a reasonably scoped clause — limited to false or genuinely disparaging statements, often mutual so both sides are bound, with carve-outs for truthful testimony, legal reporting, and honest professional feedback — is enforceable and worth having. The version that survives is the one that protects both parties from a reputational scorched-earth exit, not the one that tries to buy permanent silence from anyone who ever pays you.

How should I actually draft it?

Match the clause to the relationship and keep it defensible. Make it mutual where it makes sense, so it reads as a fair term rather than a one-sided muzzle. Define disparagement narrowly — false statements or genuinely reputation-damaging conduct — rather than "anything negative." Build in the carve-outs that keep you on the right side of the law: truthful statements, legally required disclosures, reporting of actual wrongdoing, and honest reviews where consumers are involved. And be clear-eyed about your real goal. If you're trying to stop lies and scorched-earth exits, a clean clause does that. If you're trying to stop the truth, no clause will save you, and the attempt can boomerang. This is precisely the kind of nuance a real agreement handles and a generic template botches.

Bottom line

A non-disparagement clause is a sharp tool: powerful in the right relationship, dangerous in the wrong one. Used between businesses or in a settlement, narrowly drafted and ideally mutual, it protects you from a reputational scorched-earth exit. Aimed at silencing honest consumer reviews or suppressing truthful reporting, it's likely unenforceable and can create the very liability you were trying to avoid. The difference is entirely in the drafting and the context. The Contract Library has non-disparagement and related terms scoped to actually hold up — customized for you, not a generic template — each one built by a 20-year litigator and paired with training. Defense wins championships.

Frequently asked questions

What is a non-disparagement clause?

A contractual promise not to make statements that damage the other party's reputation. In business agreements it's often mutual, keeping both sides from publicly trashing each other after a deal or relationship ends.

Can I stop customers from leaving negative reviews?

Generally no. There is strong legal hostility to terms that penalize consumers for honest reviews, and such provisions have been specifically targeted. Trying to gag truthful consumer feedback can turn your own contract into a source of liability.

When should I use a non-disparagement clause?

When it's mutual, narrowly drafted, and tied to a real relationship — between partners, vendors, in a settlement, or a separation — with carve-outs for truthful statements and legal reporting. It's for stopping scorched-earth exits, not silencing the truth.

How narrow does the clause need to be?

Narrow enough to look like a reasonable business term, not a gag order. Limit it to false or genuinely disparaging statements, include carve-outs for honest feedback and legally required disclosures, and make it mutual where possible. This is educational information, not legal advice.

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About the Author — Karam Nahas, The BattleTested Lawyer. A 20-year courtroom veteran who has handled over $1 billion in deals and real litigation, Karam founded Legally Bulletproof to give entrepreneurs the same legal defense systems big companies use — without big-law prices.

Ready to lock it down? Visit the Contract Library — every contract comes with the training and a 20-year lawyer inside your business, starting as low as $197, and it's constantly updated and customized.

Educational content, not legal advice.