Freedom of speech is considered to constitute a fundamental right for employees both outside and within an employer’s premises. However, generally speaking, the exercise of this right is not considered to be legitimate if it leads to abuse, such as excessive, insulting or defamatory statements.
Moreover, regardless of the existence of any abuse, French employment law permits the restriction of such rights if such restrictions can be justified by the nature of the task performed by the employee and if such restrictions are proportionate to the purpose thereof.
Generally, such restrictions are created during the performance of the employment contract. The specificity of the decision in question was that the restriction on the employee’s freedom of speech was created following the termination of his employment contract.
In the decision, a nationwide French television channel had entered into a settlement agreement with an extremely well-known broadcast news anchorman following his (well publicized) dismissal. Under the terms of such agreement, each party agreed to refrain from criticizing or disparaging the other party with respect to their previous collaboration, for an eighteen-month time-period beginning on the date of signature of the settlement agreement. Despite this unequivocal provision, the anchorman published a book only one month after the conclusion of the settlement agreement, which included very critical statements on his working relationship with his recent employer. The employer then filed a claim against the anchorman, claiming substantial damages for the loss suffered due to the breach of the settlement agreement clause.
Both the Court of appeal and the Supreme Court ruled in favor of the employer and ordered complete enforcement of the provision of the settlement agreement restricting the employee’s freedom of speech. The Supreme Court held that the clause was justified by the need to protect the employer’s reputation, taking into account several elements:
- the non-disparagement clause was reciprocal;
- the clause clearly specified the persons and companies, as well as the television programs that the employee undertook not to criticize or disparage;
- the restriction was for a limited period of time.
Despite the positive result for the employer in this case (the employee was sentenced to pay the TV channel 400,000 euros as damages – he had received a settlement indemnity of around 1,35 million euros), this decision should not be viewed as automatically entitling employers to include non-disparagement provisions in settlement agreements entered into with previous employees. The media exposure surrounding the dispute, and the importance of reputation in this very particular industry, were decisive circumstances in the outcome of the case. Therefore, employers should be aware that it may be difficult to enforce non-disparagement clauses included in settlement agreements unless there are specific circumstances.