In the world of contracts and business relationships, two common clauses often appear in legal agreements: confidentiality and non-disparagement. While they may sound similar and are sometimes confused with one another, these clauses serve very different legal purposes—and have very different implications for your freedom to speak about your experiences.
Whether you’re a freelancer, contractor, business owner, or employee, understanding the distinction between these two is critical—especially if you’re being pressured to stay silent about a dispute, or you’re trying to retain the right to share your story.
Let’s break down the difference between confidentiality and disparagement, when each applies, and how to protect your rights.
Disparagement and confidentiality are not the same in law, though they can sometimes overlap.
Here’s the distinction:
- Confidentiality – A confidentiality clause (or NDA) prevents you from disclosing specific protected information, such as trade secrets, business dealings, or privileged communications. If you signed a contract with a confidentiality clause, you might be legally barred from sharing any details of your interactions with the client.
- Non-Disparagement – A non-disparagement clause prohibits negative or damaging statements about the client, but it doesn’t necessarily prevent you from discussing the interaction. If you can share the story in a neutral or factual way without casting them in a negative light, a non-disparagement clause may not prohibit that.
Key Differences:
- A confidentiality clause may completely prevent you from sharing the story at all.
- A non-disparagement clause allows you to talk about it but restricts negative statements that could harm the client’s reputation.
Joseph’s Situation:
If Verdant Strategies is trying to gag order you, they might be pushing for either:
- A broad confidentiality agreement to prevent disclosure entirely.
- A non-disparagement agreement to stop you from saying anything negative about them.
Can You Retain Your Rights?
- If you haven’t signed anything yet, you still have full rights to tell your story.
- If you already signed a contract, you’ll need to check if it includes a confidentiality or non-disparagement clause.
- Even if a contract does exist, courts can sometimes strike down overly broad restrictions that infringe on your rights.
What You Can Do:
- Negotiate the contract to remove confidentiality clauses while keeping only a reasonable non-disparagement clause.
- Clarify what is actually confidential—they may be overreaching.
- Use public records if your case involved legal filings. Court documents are often public, so sharing facts from those is usually protected.
What Is a Confidentiality Clause?
A confidentiality clause, often referred to as a non-disclosure agreement (NDA), is a legally binding provision that prohibits one or more parties from disclosing certain types of information.
Common Types of Information Protected:
- Trade secrets
- Internal processes or data
- Business strategies
- Client or customer lists
- Private communications
- Payment terms
- Legal disputes or settlements
How It Works:
When you sign a confidentiality clause, you’re agreeing not to reveal specific information to the public, the media, or other third parties. Breaching such a clause can lead to lawsuits, injunctions, and financial penalties.
Example:
A consultant signs a contract with a startup that includes a confidentiality clause. After a dispute, the consultant wants to share the story online—but the agreement prohibits disclosure of internal discussions, financial data, and project communications. Speaking out, even factually, might violate the NDA.
What Is a Non-Disparagement Clause?
A non-disparagement clause is a legal provision that prohibits you from saying anything negative, harmful, or damaging about another party—even if it’s true.
What It Typically Covers:
- Public statements
- Online reviews
- Social media posts
- Comments to clients or partners
- Articles, podcasts, or interviews
How It Works:
Unlike confidentiality, non-disparagement doesn’t necessarily restrict what information you can disclose—but it restricts how you talk about it. You can often still speak about your experience factually—but you can’t make negative or critical comments that could hurt the other party’s reputation.
Example:
An independent contractor has a falling out with a client. The contract includes a non-disparagement clause. The contractor can still say, “We ended the relationship,” but they cannot say, “They’re unethical and breached our agreement,” without risking a breach of contract.
Disparagement vs. Confidentiality: Key Differences
| Feature | Confidentiality Clause | Non-Disparagement Clause |
|---|---|---|
| Focus | Protects information | Protects reputation |
| Covers | Trade secrets, financials, private data | Public or private negative statements |
| Limits on speech? | Yes – can’t share protected info | Yes – can’t speak negatively, even if true |
| Is truth a defense? | No – even true info can’t be shared | No – truth is still considered disparaging |
| Public records allowed? | Sometimes – depends on scope | Yes, but not in a negative tone |
| Common in settlements? | Very common | Often bundled into settlements or exits |
Why This Matters for Storytelling, Whistleblowing, and Reputation Defense
If you’re trying to retain the right to share your story—especially if your story involves mistreatment, unethical behavior, or contractual breaches—you must understand how these clauses could be used to silence you.
- A confidentiality clause can prevent you from speaking altogether.
- A non-disparagement clause can allow you to speak, but only in neutral or positive terms.
This can create what some call a “legal gag order”—a way for companies or individuals to hide misconduct by contractually forbidding you from ever talking about it.
Are These Clauses Enforceable?
Generally, yes—but courts will scrutinize these clauses depending on how broad or one-sided they are.
Courts May Strike Down:
- Overly broad NDAs that violate public policy
- Non-disparagement clauses that silence whistleblowers
- Agreements that restrict protected speech (such as reporting illegal activity)
California-Specific Law:
In California, for example, under Civil Code §1670.5, courts may refuse to enforce unconscionable or one-sided provisions. Also, California Civil Code § 1102.5 protects whistleblowers from retaliation, even if they signed confidentiality agreements.
Tips to Protect Your Right to Speak
If you’re negotiating or reviewing a contract, here are a few key actions:
Clarify the Scope
Ask what specific information is considered “confidential” or “disparaging.” Request a narrowed definition or exclusions.
Carve Out Exceptions
Ask for language like:
“This clause shall not apply to statements of fact or lawful reports concerning legal proceedings or disputes.”
Retain Publishing Rights
If you want to write or publish your story:
- Say so up front.
- Ask for an exclusion in writing.
- Offer to anonymize names or redact details.
Don’t Sign Blindly
Never sign a confidentiality or non-disparagement clause without reading and understanding its full implications. When in doubt, consult with an attorney.
Final Thoughts
Confidentiality protects information. Disparagement protects reputations. But both can limit your voice—sometimes severely.
If you’re dealing with a contract dispute, a toxic client, or unethical practices and want to speak your truth or publish your story, make sure you’re not unintentionally signing away your rights. Understand the difference between these two legal tools—and how to negotiate them wisely.
