Monday, January 31, 2011

Travel Writers and Publisher are in the Crosshairs of Hawaii Legislature

This came from a publisher that Feathered Quill has worked with in the past (Five Star Publications).  They are trying to get word out about what is happening in Hawaii with travel writers/publishers.

– you may or may not wish to write any of the Hawaiian legislatures – or just the governor – or send press releases. The legislature deals with this Monday: HB 548. So if you or any of your authors are concerned about this and the precedent it sets you would need to respond with your politicking ASAP. This could easily become law in other states if this is pushed through. 
If one of your authors mentions a site, location, event, beach, etc in Hawaii (or possibly other states)– someone reads about it and decides to visit it and for some reason that person has to access private property (by mistake or otherwise) and gets hurt --- the property owner is not liable – the PUBLISHER is! At the very end is what I wrote everyone on the lists below: 
Travel Writers and Publisher are in the Crosshairs of Hawaii Legislature 
Hawaii is trying to revise their statutes to make all publishers open to liability if their readers get hurt or killed. Here are the bills:

There are people in Hawaii who resent tourists being in places "they don't belong." To some, this means anywhere other than by their resort pool or on Waikiki Beach. A bill has been introduced and is being rushed through the legislature that would open publishers to liability if a reader got hurt on private land and the publication "encouraged trespassing." It sounds so reasonable. They say it's to shift liability away from private landowners if someone uninvited gets hurt on their land and was "encouraged to trespass" by an irresponsible guidebook, web site, magazine article, Twitter, blog or any other form of publishing. But that's a red herring because Hawaii Revised Statues section 520 already protects private landowners. In reality, this bill is aimed squarely at the publishing industry.
 The way this bill is written, every guidebook to Hawaii encourages trespassing, even if they don't know it.  Here's an example:
On Maui, every publication, even the Hawaii Visitors Bureau, encourages people to visit Honolua Bay. It's incredibly popular. Most people assume it's a beach park. In fact, most of the surrounding land is privately owned by billionaire Steve Case. Case permits public access, always has. But inside his giant parcel are smaller parcels (called kuleana parcels) and their owners don't want anyone there. They post NO TRESPASSING signs that everyone simply ignores, because no one actually walks through their tiny kuleana parcels to get to the beach. But this law means that by sending a reader to this location, even though the landowner allows access, if someone gets hurt they can sue the publisher because someone (not even the landowner who controls the land) posted a sign. There are literally countless places like this with complicated access issues that few writers or publishers would even know about. But they would now be liable for injuries or deaths.
 Also, even if publishers stopped doing any publications for Hawaii altogether as a result, it wouldn't matter. Someone could have a five year old publication, go to a place, "trespass," and sue the publisher for injuries the way the bill is currently written.
Lastly, even if a publisher never even mentions a place, they could still be liable. Many publishers have blogs and other means for their readers to express their thoughts to the publisher and each other. If these thoughts are on their web site, they are "publishing" according to this bill and therefore liable. This law would open the floodgates to limitless litigation for publishers who, until now, have been protected by the first amendment. It would effectively kill the travel publishing industry to Hawaii.
This bill was introduced by James Tokioka. If you want to give him your thoughts, here is his contact information.
James Kunane Tokioka
phone: 808-586-6270
fax: 808-586-6271
Below is the link to the contact info for every member of the house:
 Here is the senate:
 The Governor:
What Cass Foster wrote ALL of the above:

My name is Cass Foster and I'm a recently retired theatre professor who moved to Kauai from Arizona. My wife and I are unquestionably one of the most fortunate couples on this planet. We could not be happier with Hawaii and Kauai specifically.

I would like our situation to remain that way so I’m seeking your assistance. This is in reference to the legislative matter of HBs 548 and 552 – where if (552 – to paraphrase:) the reader trespasses onto private property to access an attraction that the publisher (not the land owner) will be held liable for injuries sustained by the reader on the private property. And at the same time 548 would exempt the property owners from liability should they be in any way negligent. And unless I'm mistaken,  Hawaii Revised Statues section 520 already provides protection to private landowners.
I am in the midst of writing a 90-minute comedy about the history of Hawaii. The play will include references to sites and locations on many of the Islands that could easily result in the readers visiting these places - since it is the intention of increasing tourism to Hawaii and showing off our great state.
All published works related to Hawaii would need to be revisited and all future publishing plans could be terminated if they have anything to do with writing or photography or possible film work about Hawaii. This has the potential to be a staggering economic nightmare to Hawaiians overall.
But worse, and I speak quite selfishly, my script can in no way be published or staged. Three actors portray nearly 60 characters telling the past 1500 years of Hawaii's history in a way that is informative and (we can only hope) endless laughter. This legislation will prevent this or anything related from being published, staged or aired. This is truly Big Brother in 2011 leading the charge in censorship.
If those of you who introduced the bill are rightfully concerned about protecting land owners from lack of control over a publisher or author possibly sending someone to their property that eventually gets hurt please revisit Hawaii Revised Statues section 520 protecting private landowners.

I hope the newly elected governor and the entire legislative body will be cautious about any influence to legislate in a manner that prevents or fears a free and open discourse to air and explore all perspectives. I have no doubt good thought has already gone into this matter. I'm just suggesting too little has been made public to believe.

I thank you for your time and look forward to your assistance.
Cass Foster


  1. This bill is meant to protect private landowners from liability, not keep people from visiting places other than resort areas. As a longtime Kauai resident and visitor industry employee, I feel that the vast majority of locals encourage visitors to explore the natural beauty of the islands. However, locals are disturbed by the lawsuits and blame games brought on by visitor deaths. This has been an ongoing issue for over a decade. Unfortunately, 'underground' type guidebooks irresponsibly encourage visitors to take risks in the name of adventure and ultimately book sales. Visitors are injured every day and unfortunately some die here, oftentimes one or two each month. Most of the deaths are in remote or dangerous areas - places that locals do not frequent because they know the risks. Hanakapi'ai, Lumahai, Queen's Bath, Wet Cave, Kipu Falls, Donkey Beach, Polihale; each one claims visitor lives on a regular basis. Unfortunately when a family member dies, the surviving loved ones often look for a culpable party. As many of the places I've listed above require access through private property, the bill affords protection to the landowners, and places responsibility where it belongs - with the party that sent the victim to the spot in the first place. Ms Foster, although I applaud your testimony, if you had read the language of the bill you would have known that it applies only to "visitor guide websites and visitor guide publications". I also encourage Ms Foster to spend time with a grieving wife, husband or father who's just lost a loved one due to a reckless guide book recommendation. As a former hotel manager, I have. Warmest aloha.

  2. Dear Anonymous,
    Regardless of what the intent is that is not what the bill says. It says if you encourage attract or cause someone to commit an offense you can be held liable, even a photo that would attract someone. This bill is poorly written and does not just go after travel guides it goes after blogs websites and even mentions twitter specifically. All you bloggers beware. even if you don't know that the land is private and you "attract" someone to go there you are liable. I have a Blog and even I would be liable for this if this bill becomes a law.
    Signed: worried blogger with an occasional twitter

  3. Over 7 million people visit Hawaii each year and very, very few of them die-in fact-thankfully.

    Hawaii Bill 520 already protects landowners from liability so this bill is redundant. And it paints a broad brush that sweeps over anyone "ENTICING" someone to visit a place. Including this very website. Where the writer above mentions - all the places - they want people to stay away from. This can and would be construed as ENTICING by any lawyer. So the webmaster should remove said comments as they could be liable.

    This is merely a bill for lawyers and will not do one thing to save lives. And furthermore, many people die in front of lifeguards (the last death in Poipu was in front of lifeguard) and on public roads than do at all these places combined. You need to get your facts straight. Should we sue the lifeguards? I'm thinking not.

    These bills nothing to do with SAVING lives but only lining the pockets of lawyers. The bills are badly written and even a newspaper could be sued - what is considered a VISITOR PUBLICATION - is anything that is published to attract people to a place - so ANY NEWS STORY about HAWAII could be included. The bill even says - " or 'publication' encourages, invites, attracts" It thereby includes all publications. And "attracts" is very general... maybe I am "attracted" to places people have died. I can then sue if I get hurt. Let me run out and buy everything ever written on a place and sue every single publication, newspaper, website, etc - my lawyer would have a wet dream.

    The poorly written bill is about trespassing and many places people visit on Kauai are not on private land and they still are at risk. Polihale is a public park with facilities... now people cannot visit places open to the pubic cause they may die? Queen's Bath - also public are most of the beaches you mentioned above! Why not just send all the tourists back to where they came from and see how long Hawaii survives?

    You may die living in your house, walking down the road, etc... I am not going to stop going swimming because someone died swimming in the ocean.

    Well, over 7 million people leave Hawaii happy as clams... and I am glad they do. Not wishing anyone ill... just saying - more people died on the roads of Kauai last year than drown and that is a fact. Look it up. Oh, but wait the people who died on the roads were mostly residents... hmmm. Does that matter to you at all? Should we shut the highways down?

    People's actions are reckless - books are just read. It is up to the individual to handle their own safety. Let's face it when it's your time - you're going - period.

    You want to dry up HAWAII tourism - pass these silly needless bills.

  4. The language from the bill:
    "Visitor guide website" means any commercial travel:
    (1) Website;
    (2) Social media wireless communication;
    (3) Forum;
    (4) Twitter account; or
    (5) Blog;

    The key here is "commercial". If you sell ad space on your blog, then obviously your site is for-profit. BTW- the state and county visitors bureaus are actively supporting this bill, so the fear of negative impact on tourism is probably unfounded.

    Regarding the statement "It is up to the individual to handle their own safety", I agree. Unfortunately we live in a litigious, sue-happy society. HB520 addresses criminal conspiracy, not liability.

    Regarding the "lining the pockets of lawyers" statement: at last week's testimony, there was but one group that spoke out in opposition to the bill. It was the lobby group for Hawaii attorneys.

  5. "Visitor guide" is defined IN THE BILL as: any published book, pamphlet, magazine, handout, mailer, or advertisement, whether
    disseminated via hard copy or electronic distribution that provides information about a visitor destination, geographic destination, or natural attraction...

    So basically - it's ANYTHING written about a place to make people want to go there.... if I was a lawyer - that could include HAWAII 5-0!

    Many items are "visitor guides" - like Sunday articles to vacation destinations. Anything commercial that provides INFORMATION about a DESTINATION is defined by this bill.

    I think you better read your statutes over again on HRS520. According to Hawaii Revised Statute 520, landowners who allow free public use of their lands receive immunity from liability, although they could be sued if they failed to warn or protect the public against a major safety risk on the property.

    I read all the testimony and the lawyers point was - you can not remove liability from landowner and I agree - but Hawaii seemingly already did that... or did they make yet another law that the supreme court in Hawaii can not uphold?

    I think you need to think to a bigger picture. They don't call it the first amendment for nothing.

    And like they say on the 2nd amendment - Guns don't kill people - people do - same goes for books, articles, websites, they are just thoughts and nothing more.

    Once you remove freedom of speech - suppose I write an article on how to cut an ironwood tree down - you read it and get hurt - you gonna sue me? Probably try. If I said - do it at your own risk - then what? Still you may sue - there are a lot of books like this - how to climb K-2, how to hike in China, How to build a gun from scratch, how to work on your car, build your own home, etc. all these are potentially dangerous... life is dangerous. My point is - we can't take away written word... it is part of our history and obviously the founding fathers thought a pretty damn important part.

    Stop being a sheep and letting government take away your constitutional rights to free thought and speech. Speak up and use your brain.

  6. You bring up great points, but please spare me the persecuted writer crap. The bill refers to commercial publications. It's in the language. Also, your first amendment rights end where my rights begin. It's the "yelling fire in a crowded theater" argument. The first amendment doesn't allow you to write anything you like without regard for the rights of another human being. We can argue the what ifs forever, but people are sue-happy. I'm not saying it's right, In fact I find it one of the most disgusting aspects of our society. The founding fathers probably did not foresee that we would come to a point where a citizen, using our legal system, could place financial responsibility for virtually every injury or perceived slight.

    HRS 520 does not deal with the third-party issue. That is if I, in a commercial publication, advise you to trespass on privately-held land I can be held liable for that advice in the event of an injury or death. It's not fair to allow the author to hide behind the first amendment.

    That said, "First we kill all the lawyers."

  7. Yeah I agree - let's kill al the lawyers... hmmmm.... wonder if that is PROTECTED SPEECH? hmmm...... we are SPEAKING of something doing something ILLEGAL.....of course you put yours in "quotes" but didn't say who said it.... hmmmm... do you see where I am going on this.

    So now maybe you get the point.... words cannot be illegal - or can they? What words are illegal? What can you say and what can you not say. Suppose we insert president for lawyers?

    That is my whole point - it is a slippery slope to loss of rights - and we as a country cannot afford to go down that slope.

    It is bad legislation and I doubt it would hold up in Supreme Court. I am shocked that the LAWMAKERS have not seen that coming already and stopped it. Someone will have some common sense or Hawaii is a truly a Banana Republic. Maybe I'll go eat a banana.