News Civil Law
26.07.23
Peter Van Onselen breached non-disparagement agreement with Network Ten
When an employment relationship ends, good advocacy usually results in prompt settlement of any competing claims. This is because employment disputes are typically conducted in no-cost jurisdictions, and the costs of litigation quickly exceed the amounts in dispute. However, the speedy resolution of claims should never inhibit a client’s pursuit of their legitimate interests.
The Supreme Court of New South Wales recently heard an application for injunctive relief (that is an order stopping a person from doing something), brought by Network Ten against Peter Van Onselen.
Van Onselen is a prominent political commentator, and former host of “the Project” – a light news show on Chanel Ten.
In around 31 January 2022, a former employee brought proceedings against Network Ten for various breaches of her industrial rights. Amongst other things, she alleged she was bullied and undermined by Van Onselen. Mr Van Onselen and Network Ten denied the allegations.
In early 2023, Network Ten requested Van Onselen relocate to Canberra, he declined and negotiated a departure from the business.
In the agreement about Van Onselen’s departure Network Ten insisted on inclusion of a non-disparagement clause. Non-disparagement clauses are included in many deeds of release, and are included in almost every employment release, as a matter of course.
Van Onselen claimed he was concerned about the capacity of the non-disparagement clause to inhibit his ability to work as a commentator. He claimed there was a need to comment on large institutions, such as Network Ten. He claimed to have raised this concern with Network Ten in the following terms:
I assume the deed doesn’t shut down my right to comment forever about the network. I mean, I’m not suggesting this obviously, and it’s deliberately extreme, but if the CEO fucked a goat and everyone was piling on Ten for not sacking them, surely I can pile it on too?
Van Onselan claimed Network Ten agreed that the non-disparagement clause did not have such a broad operation, and goat love was open to comment.
Van Onselen handed the matter to his solicitor but did not insist the non-disparagement clause be amended to reflect his conversation. Shortly thereafter, the parties executed a deed, which included the following clause:
the Employee agrees not to disparage the Company or any of the Releasees or make any statement or publication, or authorize any other person to disparage or make any statement or publication, whether oral or in writing, which may or which does in fact bring the Company or any Releasees into disrepute or ridicule or which may otherwise adversely affect their respective reputations.
This is a very standard non-disparagement clause and it shows that either Van Onselen or his lawyers did not pay proper attention to what was actually needed to protect him after he left. He is a journalist and media commentator, one would think when considering what goes into the deed, one of the first things his lawyers would have turned their mind to is a clause like this and making sure it enabled him to keep working in an uninhibited manner.
Shortly after his employment concluded, Van Onselen authored a scathing article regarding Network Ten’s financial performance. Van Onselen described Network Ten as:
- [having reached] a new low that one rival news executive told me he’d “never seen in 30 years in the business”.
- limping along with little attention paid to it by its big overseas owner (or its domestic competitors to be frank) and
- that the streaming part of the business was [is not] firing. That’s actually where the losses are centred, but it’s also where the hope for growth has long been too.
Network Ten relied on the non-disparagement clause to commence proceedings for injunctive relief against Van Onselen. Fair enough too. He’d just left there, it can hardly have been something he thought he could legitimately do having both an intimate knowledge of Channel Ten from having worked there and having apparently had conversations with Channel Ten about what he could and couldn’t do.
At hearing, Van Onselen argued the non-disparagement clause had to be read subject to his conversation with Network Ten about its scope (the goat conversation). The Court found that conversation simply did not occur. Even if it did though, there’s a fairly big difference between reporting on something as salacious as the goat love (which everyone would be reporting on) and a recent ex-employee taking it upon himself to criticize his ex-employer. He also argued that, as a political commentator he needed the capacity to comment on large public institution such as Chanel Ten.
Van Onselen also contended that the non-disparagement clause permitted fair comment (which is a defence to defamation claims). Importantly, the Court held that non-disparagement clauses are interpreted according to the rules of contract law, and not defamation. This means that defences such as “fair comment, truth or contextual truth cannot be easily read into them”.
The Court also found Van Onselen extended well past commentary and into the field of disparagement when he described Network Ten as being affected by “plummeting” share values and “limping along”.
The Court ultimately found against Van Onselen. He clearly intended to have a shot at Channel Ten.
Van Onselen’s case is a lesson in the resolution of employment disputes. Employees and employers are justified in doing all that is possible to resolve employment disputes quickly. However, if a clause of a deed inhibits an employee’s ability to work in the future, that need must be taken into account by the employee in the drafting of the deed and the wording of the deed needs to be drafted to reflect a position that protects both parties. The endeavor to get the deal done quickly should not be a reason to sign up to a standard deed without thinking it through.