[Congressional Record Volume 161, Number 181 (Monday, December 14, 2015)]
[Senate]
[Pages S8638-S8639]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 2927. Mr. McCONNELL (for Mr. Thune (for himself, Mr. Schatz, Mr.
Moran, Mr. Daines, Mr. Blumenthal, Mr. Booker, and Mr. Wyden)) proposed
an amendment to the bill S. 2044, 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;
as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Consumer Review Freedom Act
of 2015''.
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;
(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 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.--
(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 subparagraph (B), 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 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) Effective Dates.--This section shall take effect on the
date of the enactment of this Act, except that--
[[Page S8639]]
(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
(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.
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