The Non-Disparagement Clause Your Agency Wants Covers More Than You Think
You are near the signature block, and the boilerplate has a section called something like “Non-Disparagement.” It looks routine, the kind of clause you assume protects both sides equally. Read it again, because the actual text controls what you are agreeing to, not the label.
What a non-disparagement clause actually says, versus what people assume it says
“Non-disparagement” is a defined contract term, and its scope is set by the sentence it appears in, not the heading. Two clauses can carry the identical title and restrict different things.
The common assumption is mutuality: both agency and client agree not to disparage each other. In practice these clauses are often one directional, binding only the client, or binding both but defining the client’s obligation more broadly. This is a common drafting pattern, not a tracked statistic, but common enough that you should not assume symmetry from the heading. If the clause says “Client shall not” and never says “Agency shall not” nearby, it is a one way obligation dressed in mutual language.
The private reference call is usually still covered
Most buyers read “non-disparagement” and think it means “don’t post a bad review.” The actual wording is frequently broader.
Picture a scenario: six months after you end the relationship, a prospective client considering the same agency calls you for a reference, the kind of call described in what to ask on a reference call. You answer honestly, reporting was late, the account team turned over twice. Nothing you say is false. It is also, potentially, a breach.
Many clauses do not distinguish public statements from private ones. A clause restricting any communication to a third party that reflects negatively on the agency covers an honest phone call to someone doing diligence as cleanly as a public post. The text often does not say “public.” It says “third party,” and a reference caller is one.
How long the clause survives after the contract ends
Most of a services contract stops mattering once the relationship ends. Restrictive covenants are usually the exception. Near the end of most contracts sits a survival clause, a list naming which sections stay in force after the agreement terminates.
Non-disparagement is often on that list. The risk of a former client saying something damaging does not vanish when the invoices stop, so the obligation is written to outlast the relationship. What often does not get written is a limit on how long. Some survival clauses attach a stated term, illustratively a fixed number of years. Absent that, the obligation often reads as indefinite. Find the survival section before you sign, check whether non-disparagement appears there, and whether it carries an end date. “Three years” and “never expires” is not a small drafting detail.
What a fair version of the clause looks like versus an overbroad one
| Fair version | Overbroad version |
|---|---|
| Mutual: both parties bound equally | Unilateral, or client’s version broader than agency’s |
| Scoped to false or misleading statements, not true ones | No distinction between false and true statements |
| Carves out compelled disclosure: subpoena, regulator, court order | Silent on compelled disclosure |
| Carves out good faith factual statements to a party with a legitimate need to know, like a reference check | Blanket ban on negative statements to any third party |
| States a survival term with an end date | Silent on duration, or explicitly indefinite |
The carve-out to actually ask for before you sign
There is one addition worth asking for, narrower than deleting the clause: an exception allowing factual, good faith statements about your own direct experience, to a party evaluating whether to hire the same agency. Honest answers on a legitimate reference check should not count as disparagement, even if the same statement in a public post might. This protects the agency too, from false public claims with no factual basis, without asking the client to lie or stay silent to protect other brands.
Timing matters. Before signature, both sides still want the deal to close, and a narrow request is easy to fold in. After a bad split, the same request is close to impossible, because one side now has a reason to want the broadest restriction and no incentive to loosen it.
Browse vetted agencies or list your agency free
If you are comparing agencies before any contract reaches your desk, browse vetted agencies. If you run an agency and want to be discoverable to brands doing this kind of diligence, list your agency free.
If you are already bound and the relationship went bad
If you signed without any of this and the relationship has already ended badly, reread the clause’s actual scope before assuming you are silenced entirely. Many of these clauses are narrower than people remember once angry. A carve-out for compelled disclosure, subpoena, regulator, or court order, typically survives regardless of the rest of the clause.
Get a read from someone qualified to interpret your specific contract language before acting on an assumption. Enforceability depends on the actual text and jurisdiction, not something to guess about once the relationship has turned adversarial. It is the clearest argument for negotiating the carve-out earlier: the fix available now is a legal opinion, where the fix before signing was a single added sentence. For the wider checklist, see the rest of what to check in the contract, and for another clause that only bites at exit, see who owns your accounts when the agency leaves.
FAQ
Is a non-disparagement clause the same as a non-disclosure agreement?
No. A non-disclosure agreement restricts sharing confidential information. A non-disparagement clause restricts negative statements instead. A single contract can contain both, as separate provisions with different scopes.
Can a non-disparagement clause stop me from leaving a negative but honest online review?
It depends on the clause’s wording and jurisdiction. Some clauses are broad enough to attempt this, and laws in some places limit enforceability against consumer reviews. [EVIDENCE NEEDED: whether a comparable protection exists for B2B agency-client contracts, as opposed to consumer contracts]. Read your specific clause, and if uncertain, get a qualified read rather than assuming either way.
Does the clause still apply if the agency breaches the contract first?
Whether one party’s breach excuses the other from a non-disparagement obligation depends on the contract’s language and general contract principles. Not something to assume without reviewing the clause and getting qualified advice.
Should I ask my agency to remove the non-disparagement clause entirely?
Usually no. A reasonable, mutual clause with the carve-outs above protects both sides. Negotiating scope and mutuality is easier than deleting the provision outright.
