Non-Disparagement Clauses in Influencer Contracts: What a Brand Can Stop a Former Creator From Saying

A non-disparagement clause tries to bind a creator not to speak negatively about the brand — typically both while the collaboration is running, and for a period after it ends. It isn't the same as a morality clause, which governs the creator's own conduct, or an NDA, which protects information, not opinions. This article covers what the clause can actually cover, how long it should run, and why it can never validly stop a report of illegal conduct to an authority.

This is practical guidance from Make Influence, not legal advice. Any actual clause wording should be reviewed by a lawyer.

Three clauses that often get confused

All three can sit in the same contract at once, but they solve three different problems and should be worded separately — the same principle already applied to exclusivity and non-compete clauses, which shouldn't be blended into a single line either.

What can the clause actually cover?

A non-disparagement clause can, in practice, only bind a party to what an agreement can actually bind them to: refraining from false or malicious statements, and — within a reasonable, defined period — from general, unspecific criticism in public channels. It can never validly stop a true statement about a real problem, and it certainly can't stop a report the law itself requires or protects (see the section on Section 36 and the Whistleblower Act below). That's the same distinction a Danish court draws in a defamation case: truth is, as a starting point, a valid defence, whatever the contract says.

One-sided or mutual?

Most non-disparagement clauses we see in influencer contracts are one-sided — they bind only the creator, not the brand. A one-sided clause in a long-running, unequal relationship (large brand, small creator, little bargaining power) stands weaker under a Section 36 assessment than a mutual clause that binds both parties to refrain from disparaging each other. Same logic already described for the reverse morality clause: giving the counterparty the same obligation typically costs nothing extra and makes the clause easier to defend if it's ever tested.

How long should the clause run?

There's no published industry standard for the duration of a non-disparagement clause specifically — searching for a documented norm surfaced only generic, sourceless legal-content sites that don't clear this Academy's evidence bar. A more defensible starting point is to mirror whatever period is already set for other post-contract obligations in the same agreement — for example a 6-12 month non-compete period — rather than letting the non-disparagement obligation run indefinitely. An indefinite clause is exactly the kind of term that most often makes a clause vulnerable under Section 36, covered next.

The limit under Danish law: Section 36 of the Contracts Act

There's no Danish statute specifically about non-disparagement clauses. The relevant provision is the general Section 36 of the Contracts Act (aftaleloven, consolidated act no. 193 of 2 March 2016, retsinformation.dk), which applies to every type of contract term: "An agreement may be amended or set aside, in whole or in part, if it would be unreasonable or contrary to good faith to enforce it." The assessment weighs the circumstances at signing, the content of the agreement, and later developments (Section 36(2)).

In practice that means: a clause that tries to ban any form of criticism, regardless of whether it's true, with no time limit, stands weakly if it were ever tested in court. A clause limited to false or malicious statements, time-bound and mutual, stands materially stronger. No published Danish case law specifically testing a non-disparagement clause in an influencer contract was found — the assessment follows Section 36's general reasonableness principle, the same approach already used for morality clauses and post-contract non-compete clauses.

Can the clause stop a report to an authority?

No — not validly, in any case. Denmark was the first EU country to transpose the EU Whistleblowing Directive (2019/1937) into national law, in 2021, with the Act on the Protection of Whistleblowers. The Act primarily obliges employers to set up internal reporting channels for employees, but the underlying EU directive's own, broader definition of who can report also covers self-employed collaborators in a "work-related" relationship — which would typically cover an influencer supplying a service to a brand through their own registered business. Whether a self-employed creator is specifically covered in every respect isn't exhaustively settled in publicly available sources for this relationship type — but regardless of that detail, it already follows from Section 36's general reasonableness principle that a contract clause trying to bind someone not to report a genuine legal violation to an authority stands on very weak ground.

A US aside that doesn't apply here

US law (the Consumer Review Fairness Act, 15 U.S.C. § 45b) made non-disparagement clauses void in standard-form contracts between a business and a consumer in 2016 — but the law explicitly excludes employer-employee and independent-contractor agreements from its own definition of a covered "form contract", per § 45b(a)(3)(B). Most influencer contracts are exactly that kind of agreement. The point isn't that US law is relevant to a Danish collaboration — it isn't — but that even in the US, this specific statute wouldn't automatically protect an influencer against a non-disparagement clause in their own contract, if the question ever arose with a US counterparty.

What should the clause explicitly exclude?

• True statements about a real problem — e.g. an actual product defect or delivery failure the creator experienced directly.
• Legally required reports — to an authority, a regulator, or under a whistleblower scheme.
• Testimony or statements in a legal or regulatory proceeding, where the creator is obliged to state the truth.
• Ordinary, factual consumer criticism somewhere the creator otherwise has a right to review a product or experience — for example a genuine review of a product the creator bought themselves, outside the collaboration.

A clause that explicitly excludes these four situations is both more likely to hold up under a Section 36 assessment and easier for both sides to understand.

Worked example (hypothetical)

The figures below are a made-up example for illustration — not a real customer case, and not rates Make Influence uses or recommends.

An influencer signs a one-year ambassador deal worth DKK 240,000 (DKK 20,000/month) — the same illustrative deal used in the post-contract non-compete article. The contract includes a non-disparagement clause running 12 months after the deal ends, with liquidated damages of DKK 20,000 (one month's fee) per confirmed breach.

Scenario A: Ten months after the deal ends, the influencer posts a true, specific account of a product that broke after light use, and encourages followers to look into it themselves. The brand tries to enforce the liquidated damages. Because the statement is true and describes a genuine, experienced problem, the clause stands weakly under a Section 36 assessment — truth is, as a starting point, a valid defence, whatever the contract says.

Scenario B: The same influencer instead posts a false claim that the brand deliberately defrauds customers — a claim they can't document and that isn't based on their own experience. Here the clause stands materially stronger, because it's written precisely to catch false or malicious statements, not true criticism.

The difference between the two scenarios — not the liquidated-damages figure itself — is what actually decides whether the clause holds.

Decision framework

IF the clause tries to ban any form of criticism, regardless of truth → narrow it to false or malicious statements, or it stands weak under Section 36.

IF the clause is indefinite → set a period that mirrors other post-contract obligations in the same agreement, e.g. 6-12 months.

IF the clause only binds the creator, not the brand → consider making it mutual — it typically costs nothing extra and strengthens the clause if it's ever tested.

IF the creator has experienced a genuine product problem → a non-disparagement clause can't validly stop a true account of it, whatever the contract says.

IF it's a report to an authority → the clause can never validly stop it, regardless of wording.

Common mistakes

• Wording the clause broadly enough to ban any criticism, true or false. That's exactly the kind of term a court is most likely to set aside under Section 36.
• Letting the clause run indefinitely. Mirror a period already set elsewhere in the same contract instead.
• Assuming the clause can stop a legally required report. It never validly can, whatever the wording.
• Making the clause one-sided in a relationship with a clear power imbalance. A mutual clause stands stronger and typically costs nothing extra.
• Confusing non-disparagement with an NDA or a morality clause. They solve three different problems — see the comparison table above.

Make Influence's perspective

In our experience, most disputes over what a former creator has said publicly don't happen because a clause was missing — they happen because the collaboration itself already ended on bad terms: an unpaid instalment, an unclear expectation, or a kill fee that was never properly settled. A well-worded non-disparagement clause is rarely what actually prevents that; ending the collaboration itself properly usually does more. This is our operational experience running influencer and UGC programmes, not a legal conclusion.

FAQ

Can a non-disparagement clause stop a true, negative review?

No, not validly — a clause that tries to ban true statements about a genuine problem stands weakly under a Section 36 assessment, whatever the contract says.

Is a non-disparagement clause the same as a morality clause?

No. A morality clause governs the creator's own conduct and gives the brand a right to end the collaboration. A non-disparagement clause governs what the creator says about the brand — it doesn't itself grant any termination right.

Is it the same as an NDA?

No. An NDA protects information that isn't public. A non-disparagement clause is about opinions and statements, not about whether information is secret.

Can the clause stop a report to an authority?

No. Whatever the wording, a contract clause can't validly stop a legally required report — see the section on the Whistleblower Act and Section 36 above.

Should the clause be mutual?

It strengthens the clause under a possible Section 36 assessment, and typically costs the brand nothing extra — see the one-sided-vs-mutual section above.

How long should the clause run after the collaboration ends?

There's no documented industry standard. A defensible starting point is to mirror a period already set for other post-contract obligations in the same contract, rather than letting it run indefinitely.

What if the contract has no non-disparagement clause at all?

Then ordinary Danish defamation law is the only protection — a materially higher bar to clear than a contract clause, and typically only relevant for outright false, damaging claims, not ordinary criticism.

Does the same apply if the brand instead wants to stop a former employee from speaking negatively?

No, that's a different question — that situation is governed by an employee's duty of loyalty and any severance agreement, not a contract clause between a self-employed creator and a brand, which is what this article covers.

Is this the same as a minimum-duration clause requiring the post to stay live?

No — they cover different obligations. See how long must a sponsored post stay live for the separate clause governing whether the creator must keep the sponsored post itself up for a set period, distinct from what they're allowed to say about the brand.

Is this the same as a clause requiring the creator to hand back files or performance data?

No — that's a separate obligation about what the creator has to deliver, not what they may say. See post-termination cooperation and data-handover clauses for what a brand can and can't require a creator to hand over once a collaboration ends.