Why Non-Disparagement Clauses Can’t Stop Bad Reviews (and What to Do Instead)

You've put your heart, time, and energy into starting a business!

You're getting great reviews and hitting your stride. But then, for whatever reason, you have an angry client.

Maybe there was a scheduling conflict, a communication breakdown, or things didn’t turn out how they expected. 

Now they’re threatening to leave a bad review on Facebook, Google, or Yelp.

So, can your client contract protect you from a bad review? Maybe you’ve heard of a “non-disparagement clause.” That’s a part of a contract that says someone can’t talk badly about your business. Is that the answer?

As an attorney and contract creator for small business owners, I hear this question often. I help photographers, wedding planners, and many other business owners who value client reviews.

So, let’s talk about what you can and can’t do (legally) in your client contracts.

What is a “Non-Disparagement Clause?”

"Disparage" means to talk negatively about someone or something. This can hurt a person or business’ reputation. A “non-disparagement clause” is a part of a contract that stops someone from bad-mouthing a person, company, product, or service.

A non-disparagement clause is useful for employers and business-to-business relationships. For example, we include non-disparagement clauses in our employment contract template and independent contractor agreement. This is to prevent any disgruntled workers from talking badly about your business. We’ve also written out a non-disparagement clause template you can add to your contracts.

BUT, a non-disparagement clause DOES NOT belong in contracts between you and your clients. For example, if you’re a wedding photographer, it’s not legal to prevent the spouses from posting a review about your wedding gallery. 

Why You Can’t Use a Non-Disparagement Clause to Prevent Bad Reviews

When you start working with a client, it’s important to set clear expectations and protections for both of you in a good service contract. And if you decide to stop working together, it’s ESSENTIAL to protect you and your business with a cancellation contract. (You can read more in this article: “How and When to Use a Cancellation Contract.”)

But remember, you CANNOT use either of these contracts to silence a client from writing a truthful review—good or bad.

That’s because customer reviews are protected by the Consumer Review Fairness Act (CRFA). [1]

The federal government established the CRFA in 2016. This law makes it so a contract provision is automatically VOID if it tries to:

1. Stop an individual from sharing a review about goods, services, or conduct of someone who is part of the contract.
2. Charge a fee or penalty for providing a review.
3. Transfer ownership of an individual’s review (with some exceptions).¹

The CRFA stops businesses from using “gag clauses,” or contract clauses that prevent customers from leaving honest reviews. When customers can share feedback without fear of punishment. This helps customers make more informed decisions.

Based on this law, a court cannot enforce a clause that limits clients from leaving an honest review (even if it’s negative). If a business violates this act, the Federal Trade Commission (FTC) and state attorneys general could legally sue.

Limits to Review Freedom: Kinds of Reviews You Can Restrict

Keep in mind that the CRFA applies to “consumer reviews.” (You can use a non-disparagement clause in an employment contract or independent contractor agreement, or in business-to-business contracts.)

But even your clients don’t have unlimited freedom to post whatever they want about your business. There are some limitations as to what types of reviews the CRFA protects. 

For example, the CRFA act doesn't stop you from restricting reviews that:

• contain defamatory content (factually false statements that cause harm).
• reveal confidential information.
• are harassing, abusive, obscene, or discriminatory.
• are unrelated to your business's goods or services.
• are clearly false or misleading.
• are unlawful for other reasons.

While clients can share honest opinions in reviews, anything that falls into these unlawful categories is not protected. 

How to Deal With Bad Client Reviews

Negative reviews are a reality with consumer protection laws. Still, it’s no fun when a client relationship goes sour. No one likes to see a bad review pop up on their business page. Sometimes client reviews can feel unfair, upsetting, or exaggerated. 

If you respond to a review online, do it in a calm, professional, and collected way. For example, here’s how a wedding photographer could respond to a bad review related to photo edits:

“I'm sorry to hear that you weren't happy with the editing of your photos. I know these photos are important to you. My editing was consistent with the style I've posted on my website, galleries, and social media. I’m happy to adjust the editing on up to 10 photos complimentary for you. I hope this will help!”

If you do end up with a negative review, try to keep it in perspective. After working with many creatives and service providers, I can tell you that negative reviews are not usually as big of a deal as we think. People are used to seeing a few negative reviews for even the best companies. In fact, having less than five stars can make a business seem more real. (A business with only 5 stars can seem fake, right?)

Think of customer reviews as an opportunity to address concerns and improve your business. Focus on seeking out customer feedback and asking happy clients to leave you reviews.

What if a Bad Review is 100% False?

For the most part, as long as a review is truthful and based on the consumer's honest experience, it is protected.

Statements of opinion (e.g., "I didn’t like their service") are generally protected. False statements about facts (e.g., "They lied about their product") could be a basis for defamation. 

However, there are some steps I recommend you take before legal action. If someone leaves you a review that is completely far-fetched and untrue, here are some steps you can take to resolve it:

1. Reach out privately to the reviewer

Calmly contact your client about the review. Politely ask them to clarify or remove the false statement. With some positive communication, you may be able to resolve the issue directly.

2. Try to get it taken down through the platform

Most review platforms (like Google, Yelp, or Amazon) have policies against fake or misleading reviews. So you can report a review to the platform and ask them to remove it. You may need to provide some evidence that the information was false.

3. Respond professionally

If you can’t get a review taken down, you can respond to it politely. Respond with your truth to help others understand the inaccuracies. Avoid back-and-forth arguments. Also, show that you WERE willing to do or go above and beyond for the client. This way, others reading your response will see you as a true professional.

4.  (Possibly) take legal action

If the situation is serious and you’ve followed the previous steps, you might consider suing for defamation. To prove defamation, you would need to show that:

• Someone made false statements about you that they claimed to be factual, and
• They caused harm, injury, or loss to you.

Unlike disparagement, defamation goes beyond a client describing a negative first-hand experience. For example, if a client claims that you failed to show up to perform services (when you clearly did). Or that you stole or damaged property (which you would never do!).

There are several legal requirements to prove defamation, so it’s a good idea to talk to an attorney about this issue.

The Benefit of a Confidentiality Clause in Your Cancellation Contract

What if you’re ending a relationship with a client and they’re threatening a bad review? In these situations, I recommend a cancellation agreement. A cancellation contract gives you options like keeping fees paid, partially refunding fees, or refunding all fees. (Our cancellation contract templates have these three options written out for you.)

Although you can't include a non-disparagement clause in your cancellation contract, you should have a confidentiality clause.

No, a confidentiality clause doesn’t stop your clients from writing reviews. However, it does prevent them from sharing details about how you ended the client relationship. This means they cannot tell others how much you refunded them, the fees you kept, what services you did or did not deliver before the termination, etc.

This is helpful to you as a business owner because it keeps others from knowing too much about the behind-the-scenes of your business.

The Legal Paige Take: Non-Disparagement Clauses and Bad Reviews

Legally speaking, you cannot use a non-disparagement clause to stop a bad client review. However, you can use a cancellation contract with a confidentiality clause. That won’t stop a client from leaving a review, but it can prevent them from sharing details about your cancellation agreement. 

Unfortunately, bad reviews are sometimes a sticky part of running a business. But don’t get too hung up on a bad review. As you continue to deliver great service, you’ll get through it! You got this!

Get an easy-to-use, customizable cancellation contract with clauses to protect your business here.

Resources

[1] Consumer Review Fairness Act. 15 U.S.C. §§ 45b (2016).

THIS BLOG POST IS NOT A SUBSTITUTE FOR LEGAL ADVICE. EVERY SITUATION IS DIFFERENT & IS FACT-SPECIFIC. A proper legal analysis is necessary based on your location and contract. Consult an attorney in your home state for advice regarding your contract or specific legal situation.
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