Derogatory, defamatory - What's in a name?

The concept of 'anti-disparagement' provisions is one that many people are familiar with. In short, an anti-disparagement clause is one in which one or both/all parties to an agreement promise not to make negative comments about other specified parties. These are often included in settlement agreements relating to legal proceedings, especially in an employment or family context, in order to give the parties reassurance that they will be protected from a reputational perspective once the dust has settled on a dispute.

The specific wording of these provisions vary, but generally they will contain a promise not to make any 'derogatory' and/or 'defamatory' or sometimes 'adverse' comments about the specified parties (with mandatory carve outs for whistleblowers, reporting criminal activity and regulatory issues, and so on, which cannot be restrained). Often the specific word(s) used to describe the nature of the comments are not given as much thought as other parts of the clause, such as which parties the protection should extend to, because essentially the effect would appear to be the same: do not say anything bad about these parties, except in circumstances related to specified wrongdoings.

And why should it matter whether the restriction is on 'derogatory' or 'defamatory' comments? After all, anti-disparagement (or defamation, or derogation) provisions by any other name would smell just as sweet, surely? Not so. The recent High Court decision in Weavabel Group Ltd v Christie¹ highlights the important difference between the terms 'derogatory' and 'defamatory', and the impact that the inclusion of each term in an agreement can actually have on the parties involved.

The case

The judgment comes out of an application for committal for contempt against the defendant. The factual background spans multiple sets of proceedings. In essence, the defendant gave an undertaking in a court order settling a previous civil litigation. The undertaking was plainly worded: the defendant agreed not to make 'any derogatory comments' about named parties, with a carve out for reporting misconduct or serious breach of regulatory requirements in good faith.

However, after the order was issued, the defendant continued to make comments said to breach the undertaking, which led to the application for committal of the defendant for contempt of court.

Whilst the definition of 'derogatory' as opposed to 'defamatory' and the impact of including either term in the undertaking was not the primary focus of the Weavabel case, it became important because the defendant tried to rely in his defence, amongst other things, on at least some of the derogatory comments he had made being true. The definition of 'derogatory' referred to by both sides in the case is that provided by the Oxford English Dictionary, of: '… If something is said which lowers the person spoken about in the honour or estimate or is critical, it is disparaging and derogatory, whether or not it is true.' These final six words—whether or not it is true—are the key here.

The truth

Truth is a defence to defamation. That is not to say that something which is true could not be capable of having a defamatory meaning; rather, if a statement with a defamatory meaning is true, it will protect the maker of the statement from liability in defamation proceedings.

However, in another High Court case²  referred to by the claimant in Weavabel, HH Judge Shetty stated that, for derogatory statements, 'it is immaterial whether or not the matters directed are true or not'. Whilst the difference between 'defamatory' and 'derogatory' may seem academic in many situations—particularly because there is no specific cause of action for 'derogation', and those types of comments would be litigated in the context of defamation proceedings—it caused the defendant a real issue here.

Because the undertaking given by the defendant stated that he would not make any 'derogatory' comments, the judge held that whether or not the statement being made was true or not was irrelevant to the court, because the defendant had, essentially, forfeited the right to rely on truth as a defence by entering into the undertaking in that form. Had the reference been to 'defamatory' statements, the court may have taken a different approach, given that truth is very relevant to the determination of liability in defamation.

Why does it matter?

Weavabel demonstrates that reference to and restrictions on making 'derogatory' statements is not the same as a restriction on making 'defamatory' statements. This has a very real impact on individuals who have agreed to enter into settlement agreements or given undertakings in orders containing such restrictions, and who are subsequently accused of breaching them. By giving an undertaking in relation to not making 'derogatory' comments, the party giving the undertaking is agreeing not to say anything lowering someone’s reputation, regardless of whether or not it is true. 

Of course, there is a tension between this obligation and the 'whistleblowing' rights which would always permit disclosure of wrongdoing. 

The circumstances in Weavabel are clearly relevant here. The defendant was represented and advised during the course of negotiation of the terms of the order. Before making the order containing the undertaking, the judge had specifically asked the defendant if he understood the effect of the undertaking, and the defendant confirmed that he had. Whether a court would take the same approach to provisions entered into in different circumstances—for example in a settlement agreement as opposed to a court order, or where there was a question about whether the party concerned had received independent advice before agreeing—is unclear.

However, Weavabel does highlight in stark terms the importance of carefully considering the drafting of undertakings and settlement agreements. Those entering into agreements containing anti-disparagement provisions should take time to fully consider the impact of the specific wording used, and whether additional carve outs are required. It may be better to be specific about what statements are prohibited when the circumstances allow. Where the control of post-settlement remarks by a party are an important element of the remedies being obtained, then specialist drafting of those clauses is advisable. 

This material was first published by Thomson Reuters, trading as Sweet & Maxwell, 5 Canada Square, Canary Wharf, London, E14 5AQ, in Entertainment Law Review and is reproduced by agreement with the publishers. For further details, please see the publishers’ website.