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OK at Work, hosted by Offit Kurman attorneys Russell Berger and Sarah Sawyer, is a weekly podcast that discusses current events and legal issues impacting business owners. From updates on the ever-changing employment law landscape to the risks and benefits of integrating AI into your workplace, subscribe to stay up-to-date on issues and events that may impact you and your business.
Sarah Sawyer: Welcome to this
week's OK at Work with myself, Sarah
Sawyer, my colleague Russell Berger,
both attorneys at Offit Kurman.
And today we are talking about
non-disparagement and defamation.
So this comes up in a lot of different
contexts with businesses but comes up
when you're working on an agreement,
whether it be with an employee or some
type of business contact or relationship.
And you might see a non-disparagement
clause in the agreement or an
agreement to not disparage one another.
I think this is a concept that
people often think non-disparagement
and defamation are the same thing.
They sound kind of similar, and they
do cover similar things, which is, how
businesses and individuals talk about
each other or what they might communicate
regarding a business or an individual.
Kind of high level, Russell,
what is the difference and why
might you see this in a contract?
Russell Berger: Yeah.
So defamation is actionable on its own.
You don't need a contract to sue someone
for defamation, but defamation is,
in short, a false statement made to
a third party that may cause damage
to the target of that statement.
Disparagement does not have to be false.
It just has to be negative.
Negative connotation not
inherently actionable as a result.
So, when people talk about, as
you mentioned, a contract term,
you don't really need to add, "You
will not defame me" into a contract
because it's already actionable.
If it's a contract term and they
defame you, you'd sue them breach
of contract for defaming me.
Or you could just sue them for
defaming you 'cause it's already
actionable as a matter of law.
Disparagement is not actionable unless
you make it a contractual provision.
So for example, if I had a bunch of
negative opinions about you, Sarah, I
could go around and I could share them.
There are some limits on it, and
again, if I were, using false
statements, then I'd be defaming
you, and that would be actionable.
But if I just said, this isn't
factual, I just have an opinion,"
"I don't like Sarah because..."
Then that would be disparaging.
Not necessarily actionable, but if we
had a contract where we agreed not to
disparage each other, and then I went
and said something like that, then you'd
have a cause of action, you could sue me.
Sarah Sawyer: Yeah, and so it's definitely
something that a lot of folks will include
if there is a situation where something
has gone wrong in a business relationship
or an employee-employer relationship.
Because you have an interest in not just
people being truthful about what they
put out there, but also in not going
around and talking poorly about the
company or going out of their way to
try to interfere with the reputation.
So a lot of it has to do with reputation
as opposed to just, like truth
versus is it correct or incorrect.
And so that's where we see it
come up a lot is when there's
that friction that happens.
'Cause sometimes that happens, right?
That people get frustrated, emotions
get involved, and there's some concern
that, hey, someone's gonna go and talk
about me out there and they might have
an impact because of who they are and how
closely we are situated in an industry
or in a region or in a particular space.
And it's really to guard against that
damage that might do if they, start saying
things even if they're truthful about
you and start just meddling with things.
Russell Berger: Yeah, it's really
a tool you see in contracts
a lot to help bring finality.
So whether it's partners having
the dispute, employer-employee, two
different businesses, a business and
a customer, whatever it is, you have a
dispute and you reach an agreement and
you've agreed on the financials, the
release of claims, that sort of thing.
And really, there's this common sense that
we just wanna be done with each other.
We never wanna talk about each other.
We just wanna be out of
each other's lives for good.
And the non-disparagement, often
paired with confidentiality, is
we're not gonna talk about these
things that are confidential.
And obviously opinions are not
confidential, but we're also not gonna
talk about each other in a negative way.
And instead, if it comes up, we're
just gonna say, "Hey, we've resolved
our dispute to the mutual satisfaction
of all parties," and we're not gonna
say- we got a resolve, but that
other guy, ugh, don't get me started.
We're not gonna get into that because
we just wanna be done with each other.
So it helps bring finality and
conclusion to disputes as well.
Sarah Sawyer: Yeah, and because it's
involving this speech and these different
ways that people might talk about each
other, it's definitely important to
tailor it and make sure the language
is tight to bring that finality.
But good Points, and
that's a wrap on that one.
We'll see you next time, Russell.
Russell Berger: All right.
Thanks, Sarah.
Don't disparage me in the meantime.
Sarah Sawyer: Back at you.