Non-disparagement provisions restrict what a party may say about another after a relationship ends. Their enforceability depends heavily on context.
Commercial agreements between businesses. Generally enforceable, subject to carve-outs for statements required by law, in litigation, and to regulators.
Consumer contracts. Terms prohibiting honest reviews are void by federal statute, with penalties for imposing them.
Employment and severance agreements. Increasingly constrained. Provisions that would deter employees from discussing workplace conditions, or from communicating with government agencies, have been found unlawful under labour law and under whistleblower protections. Several states restrict clauses preventing disclosure of discrimination and harassment.
Necessary carve-outs. Truthful statements in legal proceedings; disclosures to regulators and law enforcement; protected concerted activity; and disclosures required by law.
Mutuality. A company can bind only identified individuals, so a mutual clause should name the executives covered rather than promising that the company will not disparage, which is unenforceable as drafted.
Remedies. Injunctive relief and, in commercial agreements, liquidated damages. Proving damages from disparagement is otherwise very difficult, which is why liquidated damages appear.
Practical drafting. Define disparagement objectively rather than by reference to statements the other party finds unflattering.