The non-disparagement clause – (sometimes) worth the paper it's written on

Non-disparagement clauses are common features of settlement agreements and deeds of release in employment disputes or separations. On paper, the clauses operate to prevent the parties from disparaging or denigrating each other. Employment disputes and separations are often acrimonious, so non-disparagement clauses can be very important to both parties in resolving the dispute. After all, nobody wants to settle a dispute and then have the other party bad-mouth them afterwards. But our clients often ask us, do such clauses work in practice? Are they enforceable?

In Network Ten Pty Limited v van Onselen [2023] NSWSC 829, the Supreme Court of New South Wales answered this question in the affirmative when it decided a dispute between Network Ten and the journalist Dr Peter van Onselen. The Court also provided some useful guidance for drafting of effective non-disparagement clauses.