Disparagement: what a competitor is not allowed to say about your products
One Monday morning, one of my clients received a message from a worried business partner. On a professional Facebook page, a competitor had just posted that his products were “dangerous and ineffective”, his company “on the verge of bankruptcy” and his after-sales service “non-existent”. Within hours, the post is shared, commented on and picked up in a discussion group followed by the entire profession. The client’s phone starts ringing, but it is customers calling to cancel their orders.
This situation, in various forms, is common. It raises a question that seems simple: does a competitor have the right to speak ill of you and of what you sell? The answer lies in a precise legal notion, disparagement (in French, “dénigrement”), a form of unfair competition.
What exactly is disparagement?
Disparagement consists in disclosing information liable to discredit the products, services or business of a company. It targets the commercial offering and the economic reputation, not the honour of a person (that would then be defamation). Claiming that a competing software “crashes constantly”, that a cosmetics brand “uses toxic ingredients” or that a service provider “rips off its customers” typically falls into this category.
Disparagement is not punished by any specific text. It is governed by ordinary civil liability, on the basis of Article 1240 of the French Civil Code: whoever causes damage to another through fault must make good that damage. The fault, here, is the act of disparaging; the damage is the loss of customers, the harm to reputation, the time spent putting out the fire. Redress must consist in the removal and cessation of the disparaging acts and statements, and in damages.
While disparagement is a variety of unfair competition, the parties need not be competitors to rely on it: the French Court of Cassation holds1 that disparagement is made out even where there is no situation of direct and effective competition between the two companies. A supplier, a former partner or an operator in a neighbouring sector may therefore be held liable.
Disparagement or defamation: a boundary that changes everything
The two are often confused, and that confusion has serious practical consequences. The dividing line is the target of the statements.
Where the criticism targets the products, services or business of a company, it is disparagement. Where it harms the honour or the standing of a person, one enters the field of defamation, governed by the Act of 29 July 1881 on freedom of the press.
Why is this distinction more than a lawyer’s subtlety? Because the 1881 Act imposes a formidable formalism and a very short limitation period (three months from publication). A defamation claim that is wrongly characterised, brought on the wrong basis or out of time, is lost in advance. Conversely, suing in disparagement when the statements amounted to defamation leads to the same failure. The choice of ground determines the success of the action, and it is one of the first analyses I carry out when a case reaches the firm.
Criticism remains allowed: the limits set by case law
Not every negative statement about a competitor is wrongful. Freedom of expression covers commercial criticism, including when it is harsh. The difficulty lies in drawing the line.
First, publicly comparing your offering with that of a competitor (this is comparative advertising) is allowed, but strictly regulated: the French Consumer Code (Articles L. 122-1 et seq.) prohibits any comparison that discredits or disparages a competitor (Article L. 122-2).
The Court of Cassation set the boundary between freedom of expression and disparagement, notably in a 2018 decision2. An association had published a scathing article about a food supplement for infants. The Court held that the disclosure of information liable to discredit a product escapes disparagement where three conditions are met: the information relates to a matter of general interest, it rests on a sufficient factual basis, and it is expressed with a degree of restraint.
In practice, this means that a competitor may compare its offering with yours, point to a real and documented defect, or warn of an established health risk. It may not invent facts, generalise from an isolated anecdote, or use outrageous terms for the sole purpose of causing harm. Criticism backed by a serious test is lawful; a gratuitous accusation of fraud is not.
Publicly mentioning an ongoing action against a competitor is also disparagement
Here is a situation I also see very regularly. A holder of a trademark, a patent or copyright believes a competitor is infringing its rights. It brings an action and, shocked by the competitor’s conduct, wants to warn the whole world: a message to distributors, a word to customers, a press release, conversations at a trade fair, and so on. The intention appears legitimate. The result amounts to acts of disparagement, and the rights holder finds itself facing a counterclaim for disparagement within the proceedings.
The principle is that, as long as no court decision has found infringement, informing third parties of the existence of proceedings or of a risk of infringement amounts to disparagement. A writ of summons is not enough. Such acts reflect the position of one party, not a judicial truth, and therefore do not form the sufficient factual basis that would make the communication lawful.
The Court of Cassation says so regularly3: disclosing to a competitor’s customers an infringement action brought against that competitor, where it has not given rise to a court decision and rests on the mere fact that proceedings have been commenced, is wrongful disparagement. It has recently hardened this line4, holding that, in the absence of a court decision finding acts of infringement, the mere fact of informing third parties of a possible infringement constitutes disparagement of the products alleged to be infringing. In that case, letters that were nonetheless drafted with restraint, addressed to distributors and supported by a duly authorised infringement seizure (saisie-contrefaçon), were enough to establish the fault.
Sending a formal notice (cease-and-desist letter) to the competitor you consider to be infringing remains possible; that is standard practice. Communicating to its customers, its distributors, the press or social media before any ruling exposes you, yourself, to having to compensate the harm you cause it. The right reflex: wait for the decision that finds infringement, or keep to indisputable facts, before any communication to third parties.
The modern forms of disparagement
The litigation has changed face. Disparaging statements no longer circulate only by letter or by word of mouth. They take the form of coordinated negative Google reviews, Instagram stories, TikTok videos, messages sent directly to your customers or distributors, comments under your posts, or Google reviews designed to harm you.
This shift to the Internet aggravates the harm, because dissemination is instantaneous, viral and lasting. A misleading review remains visible for months, sometimes years. It is indexed by search engines and confronts anyone who types your company’s name. The defence of online reputation has become inseparable from the law of disparagement, and the two are handled together.
You are the victim: the right reflexes
Above all, secure evidence of the disparaging statements. An isolated screenshot is easily challenged, all the more so since, once an action is brought, the defendant will delete the offending post. The reflex to have is to instruct a commissaire de justice (the French enforcement officer, formerly the bailiff) to draw up a report preserving the offending page, its URL, its date and its content.
Then, several routes are open, sometimes cumulatively.
- A formal notice sent by a lawyer to the author, which is sometimes enough to obtain the swift removal of the statements
- A notification to the platforms (Google, Meta, TikTok, etc.), which are required to promptly remove manifestly unlawful content notified to them
- Summary (interim) proceedings before the court, to obtain on an urgent basis the removal of the publications and their prohibition under a penalty payment, but only where the statements are very clearly disparaging, beyond dispute
- An action on the merits for unfair competition, to obtain damages compensating the loss of turnover and the harm to reputation, together with publication of the decision
The choice depends on the scale of the disparagement, on the identification of its author and on the urgency. Mass dissemination to your customers calls for an immediate response; an isolated review can be dealt with by a brief notification.
What if you are the one accused of disparagement?
The reverse situation calls for the same vigilance. Publicly comparing your offering with that of a competitor, responding to an attack, warning of a questionable market practice, all of this is possible, provided you stay within the framework set by case law. Before publishing, check that your statement rests on established facts, that it concerns a legitimate subject and that it is worded without excess. An analysis upfront costs far less than a trial.
How LAZULI can help
Whether you are the target of a disparagement campaign or you are being reproached for your own statements, the firm assists at every stage: characterisation of the facts (disparagement or defamation), assessment of the prospects of success, bailiff’s report, formal notice, notification to platforms, summary proceedings or action on the merits. All of this in a tailored approach, geared to the objectives you set yourself.
Jérémie Leroy-Ringuet, June 2026
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