Saying something critical of a person, property, business or product – something that lowers its reputation. Disparagement is also a common law tort, which generally consists of six elements:

  1. the intentional;
  2. unprivileged (i.e., not a statement made in court or in a legislature (that typically is ‘privileged from defamation claims);
  3. publication (made available to the broader public, i.e., not a private conversation between family, friends, etc.);
  4. of a false statement; that
  5. disparages the property, business or products of another (i.e, denigrates, says they are bad, of poor quality, etc.);
  6. in some objective, measurable way (vague disapproval is usually not enough.)

Disparagement as a tort has a complex interaction with trade libel, which is a very similar tort and tortious interference.

A non-disparagement clause or anti-disparagement clause is a provision often inserted in legal agreements, particularly settlements and severance agreements which prevent one or both parties from making statements critical or disparaging of the other. However, the definition of disparagement in a non-disparagement clause may be considerably looser than the definition used in tort law.


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