H. R. 5111 

One Hundred Fourteenth Congress 

of the 

United States of America 

AT THE SECOND SESSION 

Begun and held at the City of Washington on Monday, 

the fourth day of January, two thousand and sixteen 

An Act 

To prohibit the use of certain clauses in form contracts that restrict the ability 

of a consumer to communicate regarding the goods or services offered in interstate 

commerce that were the subject of the contract, and for other purposes. 

Be it enacted by the Senate and House of Representatives of 

the United States of America in Congress assembled, 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Consumer Review Fairness 

Act of 2016’’. 

SEC. 2. CONSUMER REVIEW PROTECTION. 

(a) DEFINITIONS.—In this section: 

(1) COMMISSION.—The term ‘‘Commission’’ means the Federal Trade Commission. 

(2) COVERED COMMUNICATION.—The term ‘‘covered communication’’ means a written, oral, or pictorial review, performance 

assessment of, or other similar analysis of, including by electronic means, the goods, services, or conduct of a person by 

an individual who is party to a form contract with respect 

to which such person is also a party. 

(3) FORM CONTRACT.— 

(A) IN GENERAL.—Except as provided in subparagraph 

(B), the term ‘‘form contract’’ means a contract with 

standardized terms— 

(i) used by a person in the course of selling or 

leasing the person’s goods or services; and 

(ii) imposed on an individual without a meaningful 

opportunity for such individual to negotiate the 

standardized terms. 

(B) EXCEPTION.—The term ‘‘form contract’’ does not 

include an employer-employee or independent contractor 

contract. 

(4) PICTORIAL.—The term ‘‘pictorial’’ includes pictures, 

photographs, video, illustrations, and symbols. 

(b) INVALIDITY OF CONTRACTS THAT IMPEDE CONSUMER

REVIEWS.— 

(1) IN GENERAL.—Except as provided in paragraphs (2) 

and (3), a provision of a form contract is void from the inception 

of such contract if such provision— 

(A) prohibits or restricts the ability of an individual 

who is a party to the form contract to engage in a covered 

communication; 
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(B) imposes a penalty or fee against an individual 

who is a party to the form contract for engaging in a 

covered communication; or 

(C) transfers or requires an individual who is a party 

to the form contract to transfer to any person any intellectual property rights in review or feedback content, with 

the exception of a non-exclusive license to use the content, 

that the individual may have in any otherwise lawful covered communication about such person or the goods or 

services provided by such person. 

(2) RULE OF CONSTRUCTION.—Nothing in paragraph (1) 

shall be construed to affect— 

(A) any duty of confidentiality imposed by law 

(including agency guidance); 

(B) any civil cause of action for defamation, libel, or 

slander, or any similar cause of action; 

(C) any party’s right to remove or refuse to display 

publicly on an Internet website or webpage owned, operated, or otherwise controlled by such party any content 

of a covered communication that— 

(i) contains the personal information or likeness 

of another person, or is libelous, harassing, abusive, 

obscene, vulgar, sexually explicit, or is inappropriate 

with respect to race, gender, sexuality, ethnicity, or 

other intrinsic characteristic; 

(ii) is unrelated to the goods or services offered 

by or available at such party’s Internet website or 

webpage; or 

(iii) is clearly false or misleading; or 

(D) a party’s right to establish terms and conditions 

with respect to the creation of photographs or video of 

such party’s property when those photographs or video 

are created by an employee or independent contractor of 

a commercial entity and solely intended for commercial 

purposes by that entity. 

(3) EXCEPTIONS.—Paragraph (1) shall not apply to the 

extent that a provision of a form contract prohibits disclosure 

or submission of, or reserves the right of a person or business 

that hosts online consumer reviews or comments to remove— 

(A) trade secrets or commercial or financial information 

obtained from a person and considered privileged or confidential; 

(B) personnel and medical files and similar information 

the disclosure of which would constitute a clearly 

unwarranted invasion of personal privacy; 

(C) records or information compiled for law enforcement purposes, the disclosure of which would constitute 

a clearly unwarranted invasion of personal privacy; 

(D) content that is unlawful or otherwise meets the 

requirements of paragraph (2)(C); or 

(E) content that contains any computer viruses, worms, 

or other potentially damaging computer code, processes, 

programs, applications, or files. 

(c) PROHIBITION.—It shall be unlawful for a person to offer 

a form contract containing a provision described as void in subsection (b). 

(d) ENFORCEMENT BY COMMISSION.— 
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(1) UNFAIR OR DECEPTIVE ACTS OR PRACTICES.—A violation 

of subsection (c) by a person with respect to which the Commission is empowered under section 5(a)(2) of the Federal Trade 

Commission Act (15 U.S.C. 45(a)(2)) shall be treated as a violation of a rule defining an unfair or deceptive act or practice 

prescribed under section 18(a)(1)(B) of the Federal Trade 

Commission Act (15 U.S.C. 57a(a)(1)(B)). 

(2) POWERS OF COMMISSION.— 

(A) IN GENERAL.—The Commission shall enforce this 

section in the same manner, by the same means, and 

with the same jurisdiction, powers, and duties as though 

all applicable terms and provisions of the Federal Trade 

Commission Act (15 U.S.C. 41 et seq.) were incorporated 

into and made a part of this Act. 

(B) PRIVILEGES AND IMMUNITIES.—Any person who violates this section shall be subject to the penalties and 

entitled to the privileges and immunities provided in the 

Federal Trade Commission Act (15 U.S.C. 41 et seq.). 

(e) ENFORCEMENT BY STATES.— 

(1) AUTHORIZATION.—Subject to paragraph (2), in any case 

in which the attorney general of a State has reason to believe 

that an interest of the residents of the State has been or 

is threatened or adversely affected by the engagement of any 

person subject to subsection (c) in a practice that violates 

such subsection, the attorney general of the State may, as 

parens patriae, bring a civil action on behalf of the residents 

of the State in an appropriate district court of the United 

States to obtain appropriate relief. 

(2) RIGHTS OF FEDERAL TRADE COMMISSION.— 

(A) NOTICE TO FEDERAL TRADE COMMISSION.— 

(i) IN GENERAL.—Except as provided in clause (iii), 

the attorney general of a State shall notify the Commission in writing that the attorney general intends to 

bring a civil action under paragraph (1) before initiating the civil action against a person described in 

subsection (d)(1). 

(ii) CONTENTS.—The notification required by clause 

(i) with respect to a civil action shall include a copy 

of the complaint to be filed to initiate the civil action. 

(iii) EXCEPTION.—If it is not feasible for the 

attorney general of a State to provide the notification 

required by clause (i) before initiating a civil action 

under paragraph (1), the attorney general shall notify 

the Commission immediately upon instituting the civil 

action. 

(B) INTERVENTION BY FEDERAL TRADE COMMISSION.— The Commission may— 

(i) intervene in any civil action brought by the 

attorney general of a State under paragraph (1) against 

a person described in subsection (d)(1); and 

(ii) upon intervening— 

(I) be heard on all matters arising in the civil 

action; and 

(II) file petitions for appeal of a decision in 

the civil action. 

(3) INVESTIGATORY POWERS.—Nothing in this subsection 

may be construed to prevent the attorney general of a State 
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from exercising the powers conferred on the attorney general 

by the laws of the State to conduct investigations, to administer 

oaths or affirmations, or to compel the attendance of witnesses 

or the production of documentary or other evidence. 

(4) PREEMPTIVE ACTION BY FEDERAL TRADE COMMISSION.— 

If the Federal Trade Commission institutes a civil action or 

an administrative action with respect to a violation of subsection (c), the attorney general of a State may not, during 

the pendency of such action, bring a civil action under paragraph (1) against any defendant named in the complaint of 

the Commission for the violation with respect to which the 

Commission instituted such action. 

(5) VENUE; SERVICE OF PROCESS.— 

(A) VENUE.—Any action brought under paragraph (1) 

may be brought in— 

(i) the district court of the United States that 

meets applicable requirements relating to venue under 

section 1391 of title 28, United States Code; or 

(ii) another court of competent jurisdiction. 

(B) SERVICE OF PROCESS.—In an action brought under 

paragraph (1), process may be served in any district in 

which the defendant— 

(i) is an inhabitant; or 

(ii) may be found. 

(6) ACTIONS BY OTHER STATE OFFICIALS.— 

(A) IN GENERAL.—In addition to civil actions brought 

by attorneys general under paragraph (1), any other consumer protection officer of a State who is authorized by 

the State to do so may bring a civil action under paragraph 

(1), subject to the same requirements and limitations that 

apply under this subsection to civil actions brought by 

attorneys general. 

(B) SAVINGS PROVISION.—Nothing in this subsection 

may be construed to prohibit an authorized official of a 

State from initiating or continuing any proceeding in a 

court of the State for a violation of any civil or criminal 

law of the State. 

(f) EDUCATION AND OUTREACH FOR BUSINESSES.—Not later than 

60 days after the date of the enactment of this Act, the Commission 

shall commence conducting education and outreach that provides 

businesses with non-binding best practices for compliance with this 

Act. 

(g) RELATION TO STATE CAUSES OF ACTION.—Nothing in this 

section shall be construed to affect any cause of action brought 

by a person that exists or may exist under State law. 

(h) SAVINGS PROVISION.—Nothing in this section shall be construed to limit, impair, or supersede the operation of the Federal 

Trade Commission Act or any other provision of Federal law. 

(i) EFFECTIVE DATES.—This section shall take effect on the 

date of the enactment of this Act, except that— 

(1) subsections (b) and (c) shall apply with respect to contracts in effect on or after the date that is 90 days after 

the date of the enactment of this Act; and 
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(2) subsections (d) and (e) shall apply with respect to contracts in effect on or after the date that is 1 year after the 

date of the enactment of this Act. 

Speaker of the House of Representatives. 

Vice President of the United States and

President of the Senate.