Hawaii Bill Holding Publishers Liable for Tourist Injuries Dies in Committee

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Hawaii House Bill 548 died in the state’s Senate Committee on Judiciary and Labor this week, following months of opposition by Media Coalition, whose members include the American Booksellers Foundation for Free Expression and Association of American Publishers.

H.B. 458 would have imposed civil liability on writers and publishers of travel guides – including books, websites, and advertisements – that depict or describe an attraction or activity if a reader suffers an injury or dies after trespassing to reach the site. The bill would also have imposed a duty to warn readers of any dangerous conditions “typical to the area” where the attraction or activity is located. However, Hawaii has a two-year legislative session, and H.B. 548 could return when the legislature reconvenes in 2012.

“Holding authors and publishers financially liable for the actions of readers and private landowners will have a substantial chilling effect on them,” said David Horowitz, executive director of Media Coalition. “They would inevitably limit what they wrote or what images they included in their guide books or on guide website to avoid the possibility of a lawsuit.”

Media Coalition submitted written testimony opposing H.B. 548 at multiple hearings in the Hawaii House and Senate. The testimony advised lawmakers that the legislation is unconstitutional based on the relevant case law, warned them of the chilling consequences third party liability has on speech and business, and urged them to respect the First Amendment rights of publishers, authors, and website operators by amending or opposing the bill. As the testimony points out, courts have repeatedly barred or dismissed suits seeking civil damages against content creators and distributors as a result of an injury the victim claims was facilitated by speech. Even in cases where a person mimicked what he read or saw, courts have been unwilling to suspend the First Amendment and hold a writer liable for the actions of his audience. “Speech is not a product like detergent or lawn darts,” Horowitz added. “The First Amendment protects writers, websites, and publishing houses from lawsuits that result from the actions of their readers.”

Before it was referred to the Senate Committee on Judiciary and Labor, the bill was heard in the House Tourism Committee on January 31 and again February 7; in the House Water, Land, and Ocean Resources Committee on February 14; in the House Judiciary Committee on March 1; and in the Senate Tourism Committee on March 22. Legislators eventually amended H.B. 548 to establish a task force to study the problem of trespassing-related injuries to tourists and removed the language imposing third party liability on authors and publishers. Three companion bills – H.B. 552, S.B. 1207 and 1208 – that would have imposed third-party liability on publishers and authors were all deferred or have died for this legislative session. Media Coalition’s testimony in opposition to S.B. 1207 is available on its website along with further information on the proposal, including each piece of testimony submitted in opposition to H.B. 548.