It is fashionable in some quarters to view confidentiality and non-disparagement agreements entered into by departing employees as impinging on freedom of expression. As a High Court case showed, however, they are an effective means of securing both trade secrets and reputations and judges have the power to enforce them to the hilt (Fulham Football Club Ltd v Kline).

The case involved one such agreement signed by a football club employee on his departure. Concerned that he was not abiding by its terms, the club obtained an injunction against him which prohibited him from making any derogatory or critical statements concerning his former employment. He was also banned from making any statement or remark that might harm the club's business or reputation or that of any of its past or present officers, employees, agents or shareholders.

He later admitted 42 breaches of the order, in the form of internet and social media posts. He apologised to the Court and promised to commit no more breaches. A number of further breaches followed, and the club renewed its application to have him committed to prison for contempt of court.

He pointed out that some of the posts had been taken down before any complaint was made about them and that all of them had been removed prior to the club lodging its application. He questioned the validity of the agreement and said that many of the breaches were trivial, technical or justified in the public interest.

The Court noted that he was an intelligent and articulate man whose belief that his cause was just, had on occasions led him to be lenient with the truth. He regarded the restrictions placed on him by the injunction as unjustified. The order, however, remained in force, included no public interest exception and had to be obeyed.

His more recent posts had been carefully drafted so as to avoid direct references to persons protected by the injunction. The Court, however, found that seven of those posts would have been understood to relate wholly or mainly to protected persons. After finding the man in contempt, the Court directed a further hearing at which he would be sentenced.

For expert advice on the handling of confidentiality and non-disparagement agreements contact Sam Glyn on 0808 166 8860.



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