Can I remove negative
comments posted on social media using a non-disparagement
Non-disparagement clauses are
inserted into legal agreements
to stop a party making public
statements which might damage
the other party’s reputation.
The Customer warrants that they will not disparage
the Business in any way (directly or indirectly)
In this article, we find out whether a business can use a
non-disparagement clause as a legal tool to remove a
negative post or review on social media which damages the
reputation of the business in the digital world.
And for those who don’t have or can’t use a
non-disparagement clause, at the end of this article,
Michael Field will explain other ways to deal with negative
comments made online.
How do social media
platforms respond to a request to remove a post or review?
A business wanting a negative post or review removed will
complain to the social media platform and request its
removal. It will find that the grounds for removal are
Facebook: you can report a post (give ‘feedback’)
if it contains:
Nudity / Violence / Harassment / Suicide or self-injury /
False news / Spam / Unauthorised sales / Hate speech /
Terrorism / Something else (such as a breach of Intellectual
Google Reviews: you can flag as inappropriate (a
‘policy violation’) if:
- This post contains hateful, violent, or
- This post contains advertising or spam
- This post contains conflicts of interest
TripAdvisor Reviews: you can complain about a
review if is ‘fraudulent or otherwise improper’ in violation
of the guidelines.
Comments: None of these social media platforms
lists ‘damage to reputation’ as a ground for complaint. The
closest are: ‘Hate speech’, ‘hateful’, ‘inappropriate’ or
A business should complain, but know that it is unlikely
that an offending post or review will be removed because the
social media platforms assume that ‘freedom of speech’ is a
constitutional right not only in the USA but world-wide.
To illustrate, TripAdvisor states that it will
‘only sometimes’ remove a review and recommends that a
business write a management response as the best way to deal
with a negative review.
Might a non-disparagement clause be the answer?
What is needed for a
legally valid non-disparagement clause?
Non-disparagement clauses are often found in consumer
contracts. Their purpose is to ‘discourage’ negative
But unless the clause complies with the Australian
Consumer Law (ACL) provisions concerning unfair contract
clauses, it will be void.
Home builders are a magnet for complaints ranging from
delays to poor workmanship to unforeseen extra costs.
Naturally, they would like to stop dissatisfied customers
from posting bad reviews online on social media.
From October 2008, Wisdom Properties, a home builder,
included this non-disparagement clause in over 3,000 Home
- The owner must not make a media release,
announcement, blog, public statement or article for
publication about the Contract or the services provided
pursuant to this Contract, whether in electronic form or
(a) with the prior written consent of the Builder (which
may be withheld at the Builder’s
absolute discretion); or
(b) as required by law.
- If the Builder agrees to the Owner’s request to make
a media release, announcement, blog, public statement or
article for publication, the Builder is entitled to
determine the time and wording of that media release,
announcement, blog, public statement or article for
- The Owner shall indemnify the Builder for any loss
arising from any media release, announcement, blog,
public statement or article for publication whether or
not the Builder authorised that media release,
announcement, blog, public statement or article for
- The Builder reserves its right to commence any
action, including but not limited to a defamation
action, against the Owner arising from any publication
of information howsoever related to the Builder.
Wisdom Properties used this clause to stop bad reviews
from being published on the online review website,
Unfortunately, Wisdom Properties continued to use the
clause after the unfair contract terms law came into force
on 12 November 2016. The law applies to its Home Building
Agreements because they contain standard form contract
The regulator, the ACCC (Australian Competition &
Consumer Commission), considered that the non-disparagement
clause was an unfair contract term and therefore void under
sections 23 and 24 of the Australian Consumer Law (the ACL).
Wisdom Properties admitted that the clause was an unfair
contract term and undertook to remove the clause from its
agreements for three years, to send a corrective customer
letter, to publish a corrective notice on its website and to
implement an ACL Compliance Program.
ACCC Commissioner Sarah Court said: “Any standard form
contract terms that prevent or limit a customer from making
public comments about goods or services are likely to be
unfair under the Australian Consumer Law.” See ACCC media
release (6 June 2018)
- The ACCC used the word likely in the media release
because the ACCC’s interpretation of the law on whether
non-disparagement clauses are unfair contract terms has
not been tested in court. There are two arguments that a
business might raise that a clause is valid:
(a) the clause is valid because it is reasonably
necessary to protect the legitimate
interests of the party advantaged by the term (s
24(1)(b) ACL), and
(b) the customer has not suffered any detriment because
of the clause (s 24(1)(c) ACL).
- The non-disparagement clause used by Wisdom
Properties was broadly drafted and imposed unfair
obligations on the customer, and it was agreed it was
invalid. If a non-disparagement clause was drafted more
narrowly to simply prohibit statements which actually
disparage the business, it may be valid in a standard
Conclusion: A simple and clear non-disparagement
clause has more chance of being valid and enforceable than a
complex and broadly drafted clause, as we will see in the
case study below.
What legal action can be
taken to remove a post or review?
A business which includes a valid non-disparagement
clause in its documentation has a specific reason to request
that a negative post or review be removed from social media.
There is no court decision on removal of a negative post
or review on social media in Australia using a
non-disparagement clause. But there is a court decision
where a non-disparagement clause was used to prevent a
program screening on traditional media (free to air
The decision is Cleary v Kocatekin  NSWSC
364 in the Supreme Court of New South Wales in which Justice
Davies was asked to enforce a non-disparagement clause in a
deed of settlement of a building dispute between a
builder and a customer. The clause was:
Each party agrees not to disparage or otherwise bring
into disrepute or otherwise cause any injury or
potential injury or damage to the good name and standing
of the other, either orally or in writing.
The builder sought an injunction against Channel Seven to
prevent it from screening on its Today Tonight program a
story about the building dispute because the screening would
be in breach that non-disparagement clause.
Justice Davies agreed and granted an interim injunction
against Channel Seven (even though it was not a party to
the deed of settlement), saying:
there is a serious question to be tried on the issue
of whether Channel Seven would be aiding, abetting or
assisting the breach of contract by the Defendant [the
customer] by disclosing information concerning the
dispute which might injure the good standing or repute
of the Plaintiff [the builder]. [paragraph 35, judgment]
- A deed of settlement is drafted when a legal
dispute is settled. It is not a standard form contract.
- The builder was able to use the clause against
Channel Seven even though it was not a party to the deed
because Channel Seven would be aiding, abetting or
assisting the breach of contract by screening the
- If the damage to reputation is serious enough to
warrant the cost of legal proceedings, this decision
will assist a business to seek a court order for the
removal of a negative post or review on social media if
it is in breach of a non-disparagement clause.
A properly drafted and valid non-disparagement clause
could be a very useful legal tool to use for the removal of
a negative post or review on social media, if coupled with
the threat of legal proceedings.
Marketing Comments by
Michael Field, EvettField Partners
For a business, participating in social media is like
grabbing a tiger by the tail; if you hang on it’s a rough
ride and if you let go, its worse!
It is futile for business owners to try to hide from
negative comments and criticism online as there are
countless online forums and review sites where their
dissatisfied customers can publish their complaints
Contractual restraints such as non-disparagement clauses
have limited application.
Business managers need to gear up their marketing and
communications capabilities to deal with negative customer
For a business owner to manage their online profile, and
deal with negative comments and criticism, they need to know
the difference between: Owned Media, Paid Media and Earned
Owned Media is a website or blog which the business
creates and controls. On these platforms, the business can
remove or edit comments and delete negative comments.
Platforms such as YouTube and Facebook, although technically
not ‘owned’ by the company, do provide the opportunity to
the business to hide, delete and block comments and ‘lock
down’ the business page.
Paid Media is content which a business has paid for, such
as ads and sponsored posts and all paid advertising on
Earned Media is any content published about your brand or
company by other people such as staff, customers, media or
market commentary including industry or product reviews,
league tables and ranking sites. Earned media includes
word-of-mouth which can be positive, negative or neutral.
The business has no control over what is being said or
published on earned media. It cannot stop people making
comments or posting negative reviews. It cannot delete
Conclusion: A business has total control over
their Owned Media and Paid Media, and very little control
(if any) over Earned Media.
What’s the best way to deal with negative comments made
online on Earned Media?
Where it can, the business needs to address the comments
directly with the customer on the platform with a caring and
empathic reply. This approach demonstrates goodwill from the
company and showcases effective problem solving capabilities
online for any current or prospective customer to read and
make up their own mind.
They say that the best place to hide a dead body is on
page 2 of Google, because nobody goes there. A great
business will have many satisfied customers saying positive
things about the business online, which means that negative
reviews will be drowned out in a crowd of positive reviews.
Properly managed, you might appear on page 1 of Google and
be flooded with enquiry!