dispute relating to defamation and character …3 2nd surana & surana and dr. m.s. ramaiah...

1 2ND SURANA & SURANA AND Dr. M.S. RAMAIAH NATIONAL TORT LAW MOOT COURT

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M E M O R A N D U M O N B E H A L F O F D E F E N D A N T

BEFORE THE HON’BLE HIGH COURT OF JUDICATURE AT DELHI

DISPUTE RELATING TO

DEFAMATION AND CHARACTER ASSASINATION

O/S NO _____ OF 2018

(Under Order VIII, Rule 1 r/w. S.6 of Civil Procedure Code, 1908& S. 2, Delhi High

Courts (Amendment) Act, 2015.)

IN THE MATTER OF

Mr. WILSON PLAINTIFF

V.

RACHEL DEFENDANT 1

Mr. SARTAJ SINGH DEFENDANT 2

QUIBBLER TV DEFENDANT 3

HUMBLY SUBMITTED BEFORE THE BENCH OF THIS HONB’LE HIGH COURT

MEMORANDUM ON BEHALF OF THE DEFENDANT

COUNSEL FOR THE DEFENDANT

WS19D


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TABLE OF CONTENTS

INDEX OF AUTHORITIES 4

I. BOOKS

II. LEXICONS

III. STATUTES

IV. WEBSITES

LIST OF ABBREVIATIONS 6

TABLE OF CASES 8

STATEMENT OF JURISDICTION 10

STATEMENT OF FACTS 11

STATEMENT OF ISSUES 12

SUMMARY OF ARGUMENTS 13

ARGUMENTS ADVANCED 14

ISSUE 1: WHETHER RACHEL IS LIABLE FOR DEFAMING WILSON? 14

A. THE ACTIONS OF WILSON FALLS UNDER THE PURVIEW OF HARASSMENT. 14

A[1] CONTROLLING A PERSON’S REPUTATION BY RUMOUR MONGERING ABOUT A

PERSONAL LIFE. 15

A[2] PERSISTENTLY ASKING SOMEONE OUT, DESPITE BEING TURNED DOWN. 16

A[3] STATEMENTS DAMAGING A PERSON’S REPUTATION OR CAREER. 16

A[4] HARASSMENT IS NOT JUST PHYSICAL, IT CAN BE MENTAL ALSO. 17

B. THE ACTS OF MR. WILSON AMOUNTS TO STALKING. 17

B [1] JUSTIFICATION OF TRUTH FOR PUBLIC GOOD 18


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ISSUE 2 : WHETHER SARTAJ SINGH IS IMMUNE FROM HIS LIABLITY UNDER FREEDOM OF

PRESS, SPEECH AND EXPRESSION? 19

A. SARTAJ SINGH’S ACT FALLS UNDER THE UMBRELLA OF PROTECTIVE

JOURNALISM. 19

B. DEFENCE OF QUALIFIED PRIVILEGE. 20

B[1]. STATEMENTS MADE IN PERFORMANCE OF A DUTY. 21

B[2]. THE STATEMENTS WERE MADE IN PUBLIC INTEREST. 23

ISSUE 3: WHETHER QUIBBLER TV IS VICARIOUSLY LIABLE FOR SARTAJSINGH’S ACTS? 24

A. VICARIOUS LIABILITY NOT APPLICABLE. 24

B. EXCEPTIONS TO THE RULE OF INDEPENDENT CONTRACTOR NOT SATISFIED. 25

B[1]. INHERENTLY DANGEROUS ACTIVITY. 25

B[2]. DOCTRINE OF CONTROL. 26

C. EXEMPLARY DAMAGES NOT JUSTIFIED. 27

PRAYER 28


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INDEX OF AUTHORITIES

LIST OF BOOKS REFERRED:

1. Dr. R.K. Bangia, Law of Torts, 24th Edition. 2017, Allahabad Law Agency.

2. D Fardner and F McGlone, Outline of Torts, 2nd ed., Butterworths, 1998.

3. F Trindade and P Cane, The Law of Torts in Australia, 3rd ed., Oxford University Press,

1999.

4. H Luntz and D Hambly, Torts: Cases and Commentary, 5th ed., 2002, LexisNexis.

5. Mayne and McGregor, Damages, (1961), 12th edition, Sweet and Maxwell, London.

6. VivennaHarpwood, Modem Tort Law, Routledge Taylor and French Group, 7th ed.,

2009.

7. Durga Das Bau, Law of the Press, 5th ed., LexisNexis, Reprint 2015.

8. RamaswamyIyer’s, The Law of Torts, 10th ed., Reprint 2010.

9. Jain M.P., Indian Constitutional Law, 7th ed., 2014 (Reprint May 2016), LexisNexis.

10. Basu D.D., Commentary on the Constitution of India, 8th ed., 2007, Wadhwa Nagpur,

Vol 1,2,3,8.

11. Shukla V.M., Constitution of India, 12th ed., 2013 Eastern Law Book Company.

12. Basu D.D., Law of the Press, 5th ed., 2010, (Reprint 2016), LexisNexis.

13. DatarArvind P., Commentary on the Constitution of India, 2nd ed., ( Reprint 2010),

LexisNexis Butterwords, Wadhwa Nagpur.

LIST OF LEXICONS REFERRED:

1. Merriam- Webster Dictionary, since 1824.

2. Canadian Law Dictionary, 5th ed., (New York:: Barron’s, 2003).

3. Osborn’s Concise Law Dictionary, 11th ed.(South Asian Edition 2011), Sweet and

Maxwell, Thomas Reuters.

4. Wharton’s Concise Law Dictionary, Lexis Nexis.

5. Black’s Law Dictionary, (10thed).

6. P. RamanathaAiyer, Concise Law Dictionary, 5th ed., 2014, LexisNexis.


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7. P. RamanathaAiyer, Advances Law Lexicon, 3rd ed., 2005, Wadhwa and Company

Nagpur.

8. Blacks Online Law Dictionary, 2nd edition.

LIST OF STATUTES REFERRED:

1. Constitution of India, 1950.

2. Indian Penal Code, 1860.

3. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal)

Act, 2013.

4. Defamation Act, 2013.

5. Code of Civil Procedure, 1908.

6. Delhi High Court (Amendment) Act, 2005.

LIST OF REPORTS REFERRED:

1. Code of Journalistic Ethics by Press Commission of India, 1954.

2. Norms of Journalistic Conduct, Press Council of India, 2010 Edition.

LIST OF JOURNALS AND ARTICLES:

1. Glenn AvannMcCleary, Liability of an Employer for the Negligence of an Independent

Contractor, Washington University Law Review, Volume 18, Issue 4.

2. Floyd R. Mechem, The Effect of Ratification as between the Principal and the Other

Party, Michigan Law Review, Vol. 4, No. 4 (Feb., 1906).

3. Charles T. McCormick, The Measure of Damages for Defamation, North Carolina Law

Review, UNC School of Law, Volume 12, Article 3, ( 1934).

4. Bertram Harnett and John V. Thornton, The Truth Hurts: A Critique of a Defence of

Defamation, Virginia Law Review, Vol. 35, No. 4 (May, 1949), pp. 425-445.

5. J. Ross Harrington, Truth as a Complete Defence in an Action for Libel, Notre Dame

Law Review, University of Notre Dame, Vol. 4, Issue 7, Article 2, (1929).

LIST OF INTERNATIONAL CONVENTIONS AND TREATIES:

1. The European Convention on Human Rights, 1953.

2. International Covenant on Civil and Political Rights, 16th December 1996, United

Nations, Treaty Series, Vol. 999, Para 171.


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3. Universal Declaration of Human Rights, 1948.

LIST OF ABBREVIATIONS

ABBREVIATION EXPANSION

AC Appeal Cases

AIR All India Reporter

ALT Andhra Law Times

& And

All Allahabad

All ER All England Law Reports

Anr. Another

Art. Article

Arts. Articles

B and C Barnwell and Creswell

Bom. Bombay

Bom. LR Bombay Law Reporter

CPC Code of Civil Procedure

CS Case Number

Cal. Calcutta

Cri. Criminal

DLT Delhi Law Times

ed. Edition

etc. Etcetera

e.g. exemplis gratia (Latin)

ELT England Law Times

EWHC England and Wales High Court

GLR Gujarat Law Reporter

Guj. Gujarat


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HC High Court

HCA High Court of Australia

Hon’ble Honourable

IA Interlocutory Application

ILR Indian Law Reporter

i.e. id est(Latin)

Inc. Incorporation

KB King’s Bench

LW Law Weekly

LR Law Reports

Ltd. Limited

MP Madhya Pradesh

Mad. Madras

MLJ Madras Law Journal

NCT National Capital Territory

NSWLR New South Wales Law Reports

No. Number

Ors. Others

OS Original Suit

p. Page Number

¶ Paragraph Number

¶¶ Paragraphs Numbers

PC Privy Council

Pvt. Private

QB Queen’s Bench

QBD Queen’s Bench Divison

S. Section

Ss. Sections

S. No. Serial Number

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reporter

TLR Times Law Report

U/Art. Under Article


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U/Arts. Under Articles

UKHL United Kingdom House of Lords

US United States of America

v. Versus

Vol. Volume

TABLE OF CASES

INDIAN CASES:

1. B. Govindarajulu Chetty v. M.L.A. Govindaraja Mudaliar, AIR 1966 Mad 332………..26

2. Board of Trustees of the Port of Bombay v. Dhilip kumar Ragavendranath

Nadkarni and Others, AIR 1983 SC 109...……………………………………………….15

3. Bhadresh Bipinbhai Sheth v. State of Gujarat &Anr, (2016) 1 SCC 152………………..17

4. H.E. Nasser Abdulla Hussain v. DCIT, (2003) 84 ITD 43 (MUM.)……………………..24

5. M. Veerappa v. Evelyn Sequeira & Ors,1988 SCR (2) 606……………………………...15

6. P. Ravichandranvs The Government Of Tamil Nadu, Writ Petition (MD) No. 3432

of 2008……………………………………………………………………………………26

7. Printers (Mysore) Ltd. v. Assistant Commercial Tax Officer, (1994) 2 SCC 434……….19

8. R. Rajagopal v. State of T.N., (1994 (6) SCC 632)………………………………………23

9. Ramanand And Smt. Sarvan Devi v. State Of Rajasthan, 2000CriLJ 2522……………..17

10. Russion K Karanjia v. Thackeray, (1969) 72 Bom LR 94……………………………….20

11. Sewakram Sobhani v. R.K. Karanjiya, A.I.R. 1981 S.C. 1514……...…………………...18

12. State of Uttar Pradesh v. Raj Narain, AIR 1975 SC 865…………………………………19

13. Subramaniam Swamy v. Union of India, (2016) 7 SCC 221...…………………………..15

INTERNATIONAL CASES:

1. Adam v. Ward, (1917) AC 309………………………………………………………….21

2. Al-Fagih v HH Saudi Research & Marketing, (UK) Ltd [2000] WL 1675201…………21

3. Albutt v. General Medical Council, (1889) 23 QBD 400……………………………21,22

4. Bell v. Midland Rail Co., (1861) C.B. 10 [N.S.] 287……………………………………27

5. Bower v. Peate, (1876) L.R. 1 Q.B. Div. 321…………………………………………...25

6. Century Insurance Co. Ltd. v. Northern Ireland Road Transport Board,


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(1942) 1 All E.R. 491: (1942) A.C. 509…………………………………………………24

7. Chapman v. Ellesmere, (1932) 2 KB 431……………………………………………….21

8. Evans v. Elliott, 220 N.C 253, 258-59, 17 S.E.2d 125, 128 (1941)……………………..25

9. Grenier v. Southam Inc., [1997] O.J. No. 2193 (QL)…………………………………..22

10. Greer v. Callahan Constr. Co., 190 N.C. 632, 637, 130 S.E. 739, 343 (1925)………….25

11. Jameel v. Wall Street Journal Europe, (2006) UKHLU.K.H.L.4444…………………...22

12. Leenen v. Canadian Broadcasting Corp., (2000) 48 O.R. (3d) 656 (S.C.J.)…………22,23

13. M ’Pherson v. Daniels, 10B & C 263 at 272 (1929) : 109 E.R. 448. 451……………….14

14. McGolderic v. Wabash R. Co., (1918) 200 Mo. App. 436, 200 S.W. 74……………….26

15. Mangena v. Wright, (1909) 2 KB 958, 977……………………………………………...21

16. Morgan v. Incorporated Central Council, (1936) 1 All E.R. 404………………………..24

17. O’Hara v. Ladede Gas Light Co., rev’g (1912) 131 Mo. App. 428,

110 S.W. 642…………………………………………………………………………25,26

18. Performing Rights Society Ltd. v. Mtichell, etc. Ltd., (1924) 1 K.B. 762………………24

19. Quarman v. Burnett, (1840) 151 ER 509………………………………………………..24

20. Reynolds v. Times Newspapers Ltd., (1998) 3 All ER 961 (CA)……………………….22

21. Rookes v. Barnard, (1964) AC 1129: (1964) 1 All ER 367……………………………..27

22. Safeway Stores, Inc. v. Barrack, 122 A.2d 457 (Md. 1956)…………………………….24

23. Stout v. Johnson. 159 Wn. App. 344 (2011)…………………………………………….25

24. Sutherland v. Slopes. (1925) A C. 47. 79 (H.L.)………………………………………...14

25. Telenikoff v. Matusevitch, (1991) 4 All ER 817 (824-25) HL………………………….20

26. Thompson v. Railroad, (1898) 170 Mass. 577, 49………………………………………25

27. Wilkes v. wood, (1763) Loff. 1. ………………………………………………………...27

28. Woodson v. Rowland, 329 N.C. 330, 407 S.E. 2d 222 (1991)………………………….25

29. Young v. Toronto Star Newspapers Ltd., (2003) 66 O.R. (3d) 170 (S.C.J.)…………….22


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STATEMENT OF JURISDICTION

The Counsel on behalf of the Plaintiff humbly submits the Memorandum of the Plaint under

Order VIII Rule 1, read along with S. 6 of the Civil Procedure Code, 1908 and S. 2 of the

Delhi High Court (Amendment) Act, 2015.

The Defendants submit to the jurisdiction of this Hon’ble Court.


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STATEMENT OF FACTS

1. Wilson was the founder CEO of Essex Corporation whose exponential growth attributable

to the hard work of Wilson. It was to be taken over by umbrella corporation, a giant

conglomerate which could be a turning point of Wilson’s life.

2. On 24.11.2018, the meeting for the takeover was to be held. However, On23.11.2018,

Quibbler TV aired an interview of Rachel were in she levelled various allegations against

Wilson. The news anchor of Quibbler TV- Sartaj Singh carried out a 2 hour story on prime

time where the viewers were asked to vote and a debate was also telecasted pertaining that

issue.The TV channel also started a twitter campaign with the #wilsonthepervert.

3. In light of the developments, Umbrella Corporation called off the deal. Wilson filed a suit

for civil defamation, character assassination and damages before the Delhi High Court against

Rachel, Sartaj Singh and Quibbler tv and sought an public apology along with monetory

damages of 100 crores. Rachel claimed truth as her sole defence, Sartaj Singh claimed

immunity under freedom of press, speech and expression and Quibbler tv contested that they

are not vicariously liable as Sartaj was hired on contractual basis.

BACK STORY OF WILSON AND RACHEL:

1. Rachel was a fresher working under Wilson in Wade Enterprises who grew quite fond of

her. At the company’s new year party, Wilson offered to drop Rachel as she was quite tipsy.

She invited him over, he refused, Rachel then hugged him and kissed him goodbye. Wilson

was happy and the next day he proposed her in the office to which Rachel refused.

2. Deciding not to spoil the friendship, he tried to meet her when she stepped out, followed her

which made her furious. He thought it best if they both don’t work together to avoid any


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awkwardness.Rachel was informed about the swap in her department. She felt it was unfair

and Wilson should be transferred instead to which the management disagreed.

3. Rachel then filed a suit against Wilson alleging stalking, physical advaces and detrimental

treatment at her workplace under the Sexual Harassment Act, 2013. Wilson was shocked and

decided to resign. Rachel also resigned after sometime however no other company was too

keen to employee her fearing that negative feedback about her work would invite sexual

allegations. Rachel blamed Wilson for it. Several years later, in the wake of the me-too

movement, she found it right to raised her voice, which led to the present defamation suit.

STATEMENT OF ISSUES

ISSUE 1

WHETHER RACHEL IS LIABLE FOR DEFAMING WILSON?

ISSUE 2

WHETHER SARTAJ SINGH IS IMMUNE FROM HIS LIABLITY UNDER FREEDOM OF PRESS,

SPEECH AND EXPRESSION?

ISSUE 3

WHETHER QUIBBLER TV IS VICARIOUSLY LIABLE FOR SARTAJSINGH’S ACTS?


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SUMMARY OF ARGUMENTS

WHETHER RACHEL IS LIABLE FOR DEFAMING WILSON?

It is humbly submitted that Rachel is not liable for defaming Wilson as the statements made by

her were true without any malicious intent which is a valid defence to a suit for defamation.She

was indeed harassed and stalked and was also subject to detrimental treatment at workplace.

WHETHER SARTAJ SINGH IS IMMUNE FROM HIS LIABLITY UNDER FREEDOM OF PRESS,

SPEECH AND EXPRESSION?

It is humbly submitted that Sartaj Singh’s actions are under the domain of freedom of speech

& expression. Moreover, the circumstance in the present case attract the essentials of qualified

privilege i.e. statements made in pursuance of duty & in public interest. Jounalist cannot be

made liable as he is also guarded with the defence of fair comment & reasonable criticism.

WHETHER QUIBBLER TV IS VICARIOUSLY LIABLE FOR SARTAJSINGH’S ACTS?

It is humbly submitted before this Hon’ble High Court that Quibbler TV is not vicariously

liable for the acts of Sartaj Singh as the latter was hired on a contractual basis. Further, none

of the exceptions to the rule of independent contractor stand satisfied in the present case thus

making Quibbler TV immune from any liability.


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The Counsel further submits that the damages worth 100 crores falls under the category of

exemplary damages which are awarded only in special cicumstances that is absent in the

present case. There is no case of defamation and hence the damages sought are not justified.

ARGUMENTS ADVANCED

ISSUE 1

1. WHETHER MS. RACHEL IS LIABLE FOR DEFAMING MR. WILSON ?

“The law will not permit a man to recover damages in respect of an injury to a character which

he either does not or ought not, to possess1” were the words of Littledale, J wherein he stated

that the defence of truth is a generally accepted common law exception for defamation. It is

most humbly submitted before this Hon’ble Court that Ms Rachel is not liable for defaming

Mr Wilson as the statements made by her were true as the actions of Mr. Wilson clearly

amounts to harassment [A]; and stalking [B], thereby affirming the truth of the statements made

by Ms. Rachel.

A. THE ACTIONS OF WILSON FALLS UNDER THE PURVIEW OF HARASSMENT:

(a) In order to succeed in the defence of justification of truth, the defendant must prove the

truth of the words complained of, not only in their literal meaning, but also in their inferential

meaning or innuendo. Of course, even at common law, it is not necessary to prove the truth of

every detail of the words2.

(b) It is explicit from the facts of the given case that Ms Rachel has made a statement to the

Quibbler TV that Mr Wilson “stalked” and “harassed” her.3 What amounts to harassment at the

1 M ’Pherson v. Daniels, 10B & C 263 at 272 (1929) : 109 E.R. 448. 451. 2Sutherland v. Slopes.(1925) A C. 47.79 (H.L.). 3Paragraph 4, Moot Court Proposition, Page 1.


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workplace, especially has been determined and explicitly stated by the Ministry of Women and

Child Development, Government of India. It explicitly states that the following acts amount to

harassment:

(i).Controlling a person’s reputation by rumour-mongering about her private life.

(ii).Persistently asking someone out, despite being turned down.

(iii).Statements damaging a person’s reputation or career.4

(c) It is most deferentially contended before this Hon’ble Court that all the aforementioned

limbs are satiated in the present case and therefore, the statement made by Ms Rachel stand

true.

A[1]. CONTROLLING A PERSON’S REPUTATION BY RUMOUR MONGERING ABOUT HER

PERSONAL LIFE:

(a) A person’s reputation is always considered as his/her priceless possession and also

considered as one’s intangible wealth.5 It is considered as an integral part of every human

being, and it is psychologically proven that an individual fears more for a loss of reputation

rather than a loss of material wealth.6 This is the very reason why the Right to Reputation is

considered an intrinsic facet of Art.21 of the Indian Constitution, thereby qualifying to be a

fundamental right.7 Therefore, wrecking a person’s reputation, especially at the workplace is

considered as an important bough of harassment at workplace.

(b) In the instant matter, it is very clear that Mr Wilson contributed to capsizing Ms Rachel’s

reputation by making statements about what happened between him and her, which is a very

personal affair, which need not have been broadcasted to everyone at the work place. The fact

sheet specifically mentions that he immediately called up all his friends8 and told them about

what transpired between him and Rachel on the New Year’s Eve9, without Ms Rachel’s consent

4Handbook on Sexual Harassment at Workplace, (Prevention, Prohibition and Redressal Act, 2013), Government

of India, Ministry of Women and Child Development. 5M. Veerappa v. Evelyn Sequeira&Ors., 1988 SCR (2) 606. 6 Borderless Technology Corporation- Study on “Importance and Psychology of Reputation in Human Lives”-

https://medium.com/@Borderless/the-importance-and-psychology-of-reputation-in-human-lives-c72362393c91-

Accessed on: 11th February, 2019, 14:35 HRS. 7 Board of Trustees of the Port of Bombay v. Dhilip kumar Ragavendranath Nadkarni and Ors., AIR 1983 SC

109. Also in: Subramaniam Swamy v. Union of India, (2016) 7 SCC 221. 8Paragraph 13, Moot Court Proposition, Page 3. 9Paragraph 12, Moot Court Proposition, Page 2.


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which was totally unnecessary, in the Counsel’s reverent submission. This was completely a

private affair that was disseminated to all his friends without even understanding Ms Rachel’s

intentions, which contributed adversely to sabotaging her reputation at her workplace.

(c) Further, on the next day, without even having a word with Ms Rachel in person, Mr Wilson

chose to propose to her in a flamboyant manner in front of all their colleagues which further

contributed to the embarrassment of Ms Rachel at the workplace10. Mr Wilson read too much

into the events of the New Year’s Eve, it is very common in today’s corporate culture to give

a hug and a friendly kiss as a gesture of gratitude which is what Ms Rachel did11and the plaintiff

misinterpreted the action which caused immense suffering to Rachel.

A[2]: PERSISTENTLY ASKING SOMEONE OUT, DESPITE BEING TURNED DOWN:

(a) Persistently asking someone out, despite them showing no interest also amounts to

harassment. In the instant case, Ms Rachel expressed complete disinterest towards Mr Wilson’s

advances and she never intended to have anything more than a platonic friendship with him.

The kiss and the hug on the New Year’s Eve was also only a friendly gesture which was

misinterpreted by Mr Wilson.

(b) The facts of the present case makes it very clear that Mr Wilson continuously kept asking

her out, despite Ms Rachel showing no interest towards his advances.12 The fact sheet clearly

establishes that Mr Wilson took utmost efforts to persuade her and tried to force her into

reciprocating the love for which she had no interest.13 Therefore, this limb also stands satiated.

A[3]: STATEMENTS DAMAGING A PERSON’S REPUTATION OR CAREER:

(a) Making statements that jeopardize a person’s career or reputation also amount to

harassment. In the instant matter, Mr Wilson disclosed about the personal affairs involving Ms

Rachel and himself to all his friends and colleagues14, which petrified and embarrassed15Ms

Rachel. Further, he also ensured that the administrative department of Wade Enterprises

swapped Ms Rachel’s department from securities and investments division to the marketing

10Paragraph 13, Moot Court Proposition, Page 3. 11Paragraph 12, Moot Court Proposition, Page 2. 12Paragraph 15, Moot Court Proposition, Page 3. 13Paragraph 15, Moot Court Proposition, Page 3. 14Paragraph 13, Moot Court Proposition, Page 3. 15Paragraph 14, Moot Court Proposition, Page 3.


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division16, thereby moving her from her strongest arena, which had a detrimental effect on her

performance and she had no career growth after that, thereby staking her career.

(b) The counsel submits that Mr Wilson was being selfish, he did not know to differentiate his

personal and professional life and just because things would be awkward for him, he persuaded

the administrative department to swap Ms Rachel’s department, for no fault of hers. Even

assuming that Mr Wilson had no say in transferring Ms Rachel, it is understood in common

parlance that when a senior member wants such a kind of a transfer, it is generally only the

subordinate who is transferred and not the Department Head himself.

(c) Thus, it can be easily inferred that he specifically made such statements to the HR

Department which would ensure Ms Rachel’s transfer to another department which made her

lose her forte and her future career growth17, for merely refusing to have an intimate

relationship with a senior head, Mr Wilson. Therefore, it is humbly submitted that this limb is

also satiated; thereby affirming that Ms Rachel was indeed harassed by Mr Wilson and his

continuous actions amounted to workplace harassment.

A[4]: HARASSMENT IS NOT JUST PHYSICAL, IT CAN BE MENTAL ALSO:

(a) It is well settled principle that harassment is not just physical; it can also be psychological

and concerned with the disturbing of an individual’s mental peace and serenity.18 In the instant

case, Ms Rachel also suffered from severe mental agony/pressure and trauma because Mr

Wilson persistently kept following her, calling her and texting her, despite her showing no

interest19. He also made public an issue which was a personal matter concerning Ms Rachel

and himself which caused severe mental trauma and embarrassment to Ms Rachel.

(b) Moreover, Mr Wilson was also responsible for Ms Rachel being swapped to another

department which not being her forte, further contributed adversely to her career growth and

development prospects. She suffered deep mental agony owing to this aspect also. Moreover,

she was repeatedly being rejected by many companies for no fault of hers due to what transpired

16Paragraph 17, Moot Court Proposition, Page 3. 17Paragraph 20, Moot Court Proposition, Page 4. 18BhadreshBipinbhaiSheth v. State of Gujarat &Anr.,(2016) 1 SCC 152. Also in: Ramanand And Smt. Sarvan

Devi v. State Of Rajasthan, 2000CriLJ 2522. 19Paragraph 15, Moot Court Proposition, Page 3.


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at Wade Enterprises20which also contributed to her mental sufferings, due to the stigma

attached in this society.21

Therefore, it is most humbly submitted that the truth in the part of Ms Rachel stating that she

was “harassed” has been proved from all the different aspects.

B. THE ACTS OF MR WILSON AMOUNTS TO STALKING:

(a) Stalking can be understood as the following:

“Any man who-

(i) follows a woman and contacts, or attempts to contact such woman to foster personal

interaction repeatedly despite a clear indication of disinterest by such woman; or

(ii) Monitors the use by a woman of the internet, email or any other form of electronic

communication, commits the offence of stalking”22 This position is also affirmed by

the Sexual Harassment of Women at Workplace (Prevention, Prohibition and

Redressal) Act, 2013.

(b) From the facts of the case in hand, it is very clear that Mr Wilson persistently followed and

tried to contact Ms Rachel, despite her blocking him and making it clear that she did not intend

to have any further interaction with him23. He also followed her when she went out with her

friends24, which caused further annoyance to her. He tried to foster personal interaction with

her despite her, denying it several times, which clearly amounts to stalking as defined by the

Criminal Law (Amendment) Act, 2013.25

B[1] JUSTIFICATION OF TRUTH FOR PUBLIC GOOD:

(a) The Respondents would like to move a step ahead, and prove that this was not just a

statement that carries with itself the defence of truth, but also bears the defence of truth that is

justified in public good.26Generally, in tort law, it is enough if the defence of truth is

20Paragraph 20, Moot Court Proposition, Page 4. 21Paragraph 21, Moot Court Proposition, Page 4. 22S. 354 D, Indian Penal Code, 1860.(Criminal Law Amendment Act, 2013). 23Paragraph 15, Moot Court Proposition, Page 3. 24Paragraph 16, Moot Court Proposition, Page 3. 25 Section 354D, Indian Penal Code, 1960 (Criminal Law Amendment Act, 2013). 26Geoffrey Palmer- Defamation and Privacy Down Under, 64 Ipwa Law Rev. 1209 at 1239(1979).


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established27, which the Defendant has already done; however, the Defendant would also like

to submit that this statement was made on air on Quibbler TV for public good.

(b) Mr Wilson is now, the CEO of a huge enterprise28 that is just about to have a huge

conglomerate merger with Umbrella Corporation29. This company would comprise of both men

and women who will work under the guidance and supervision of Mr Wilson, with whom the

same incident might happen and justice might be denied. Ms Rachel, being a valiant and bona

fide person has come out and made this statement for public good so that the women working

under Mr Wilson will be aware of the truth and be cautious and be guarded. Therefore, it is a

humble contention that the statement made by Rachel not only bears the mere defence of truth

but is also a truthful statement made for public good, which is a well-defined exception under

the Indian Penal Code also30. Hence, the defence of truth, viewed from any ambit holds good

for Ms Rachel’s statements.

ISSUE 2

2. WHETHER SARTAJ SINGH IS IMMUNE FROM HIS LIABILITY UNDER FREEDOM OF

PRESS, SPEECH & EXPRESSION?

A.SARTAJ SINGH’S ACT FALLS UNDER THE UMBRELLA OF PROTECTIVE JOURNALISM:

(a) The Hon’ble Supreme Court has, time and again, reiterated that though freedom of press is

not expressly guaranteed as a fundamental right, it is an implicit right under the freedom of

speech and expression guaranteed by the Constitution of India. Freedom of press has always

been a cherished right in all democratic countries and the press has rightly been described as

the fourth estate. The democratic credential of a State is judged by the extent of freedom, the

press enjoys in that State31.

27SewakramSobhani v. R.K. Karanjiya, AIR 1981 SC 1514. 28Paragraph 1, Moot Court Proposition, Page 1. 29Paragraph 2, Moot Court Proposition, Page 1. 30 S. 499, Indian Penal Code, 1860. 31Printers (Mysore) Ltd. v. Assistant Commercial Tax Officer, (1994) 2 SCC 434.


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(b) The Supreme Court has given a broad dimension to Art.19(1)(a) by laying down the

proposition that freedom of speech involves not only communication, but also receipt of

information. Hence Art.19(1)(a) of the Constitution not only guarantees freedom of speech and

expression, it also ensures and comprehends the right of the citizens to know, the right to

receive information regarding matters of public concern.32 Though defamation is considered as

one of the restriction which can be placed upon freedom of speech & expression, this restriction

cannot be imposed in the present case as the defendants acted well within the constitutional

boundaries.

(c) It is reverently submitted that neither Sartaj Singh nor Rachel should be held liable for

defamation or character assassination of Mr. Wilson as the statements averted by Ms. Rachel

were depiction of true real life incidents which she had faced. Further, the 2 hour prime time

story was carried out based on Rachel’s interview & explicitly falls under the defence of

qualified privilege. Further, the journalist, in the first segment, called the viewers and general

public to comment on the conduct of Wilson and in the second segment debate was carried on

a contemporary key social issue.

(d) The defence that a statement is true is known as a plea of justification & the burden of proof

rests on the defendant to prove that the statement is true, and though it is not necessary that the

statement must be true in its literal sense, it must proved that, on the whole, it is substantially

true. Thus Rachel’s words being true in substance and fact as has been extensively proven vide

issue 2, the act of Rachel falls under the defence of Justification. Further, broadcasting of a true

event and carrying out a debate on that matter which is also an emerging social issue falls under

the umbrella of protective journalism.

(e) Sartaj Singh’s actions are further protected under the defence of fair comment. A Journalist

who pleads ‘fair comment’ need not have to show that the comment was an honest expression

of his views but merely that the comment was objectively fair, in the sense that any man,

however prejudiced, could honestly have held the views expressed. 33 A journalist, like any

other citizen has the right to comment fairly and if necessary, severely on a matter of public

interest, provided that the allegation of facts he has made are accurate and fruitful, however,

32 State of Uttar Pradesh v. Raj Narain, AIR 1975 SC 865, p 884: (1975) 4 SCC 428. 33Telenikoff v. Matusevitch, (1991) 4 All ER 817 (824-25) HL.


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defamatory they maybe otherwise. As his right to comment on matters of public interest is

recognized by law, the journalist owes an obligation to the public to have his facts right.34

(f)It is humbly contended thatthe two hour story on prime time was carried out on Quibbler TV

only after verifying the contents averted by Rachel; the act of Journalist is protected under the

freedom of press and defence of qualified privilege is applicable as well. Moreover, being a

part of a reputed news channel, Sartaj Singh has the duty and responsibility of bringing out the

truth of the happenings in the society to make the people vigilant and alert.

B. DEFENCE OF QUALIFIED PRIVILEGE:

(a) There are certain occasions when the law recognizes that the right of free speech outweighs

the plaintiff’s right to reputation i.e. in particular circumstances, a person is allowed to make

defamatory statements so as to incur no liability even if the statement be untrue. The law treats

such occasion to be “privileged” & defamatory statements made on such occasion are not

actionable. They are privileged in public interest as the law considers that a person acting from

a sense of duty or interest should do so without the fear of being called upon to prove the truth

of his words in a court of law35. Sartaj Singh and Quibbler TV’s actions falls under this very

purview of qualified privilege.

(b) Qualified privilege can be aptly described as “a limited right to publish with impunity untrue

defamatory matter”.36 Qualified privilege exists when the defendant is exempted not absolutely

but only conditionally, in the absence of malice. In this case, the law recognizes that the

defendant had some lawful interest or duty in making the statement, and consequently, he

should be protected from liability so long as he is not proved to have acted from an improper

or ulterior motive. To avail the defence of qualified privilege, it must be satisfactorily

established that:

i. (i). The statement was made on a privileged occasion i.e., it was in discharge of a

duty or protection of an interest.

ii. (ii). Statement was made without malice.

B[1]:STATEMENTS MADE IN PERFORMANCE OF A DUTY:

34Russion K Karanjia v. Thackeray, (1969) 72 Bom LR 94. 35Adam v. Ward, (1917) AC 309, pp 334-45, per Lord Atkinson. 36Al-Fagih v HH Saudi Research & Marketing, (UK) Ltd [2000] WL 1675201 at [48].


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(a) Such duty may be legal, moral or social. The foundation of this qualified privilege is that

the person who makes the statement regarding the plaintiff “has an interest or a duty to make

it to the person to whom it is made, and the person to whom it is so made has a corresponding

interest or duty to receive it. The reciprocity is essential.”37 Such communications are protected

for the convenience and welfare of society.

(b) In order to constitute a privileged occasion, a duty or interest should exist not only in the

side of defendant, but also in the side of person or persons to whom he publishes the statement.

In some cases, the whole public may have an interest in being informed - e.g. a controversy on

a matter of public interest carried out in the press38, warning given to the public about an

impending danger or fraud, notice of sale or bankruptcy39, reports issued by government, public

bodies or companies40.

(c) In the instant case at hand, undeniably both Sartaj Singh and the Quibbler TV had an

onerous duty of exposing the wrong happenings in the society and to inform the general public

about the same. The journalist, Mr. Sartaj Singh had a bona fide motive of bringing into light

the unheard voice and plight of the Ms. Rachel, which was concealed owing to Wilson’s

societal status, position and fame. The Defendants only attempted to unveil the real and dark

side of Mr. Wilson which was safely tucked under a garb and hidden from the eyes of general

public. Hence the journalist is not actuated with ulterior motive, rather acted with a bona fide

intention of addressing the agony & suffering of Ms. Rachel.

(d) Moreover, the public has the reciprocating interest of receiving the information. Media

discharges a very onerous duty of keeping the people knowledgeable and informed. It creates

opinions, broadcasts different points of view, brings to the fore wrongs and lapses of the

Government and all other governing bodies and is an important tool in restraining corruption

and other ill-effects of society. The media ensures that the general public actively participates

in the decision-making process.

(e) The defence of qualified privilege is a valid defence which should be allowed to be raised

by the press while commenting on matters of public interest and public figures.41 The media

37 Adam v. Ward, (1917) AC 309. 38Chapman v. Ellesmere, (1932) 2 KB 431. 39Mangena v. Wright, (1909) 2 KB 958, 977. 40Allbutt v. General Medical Council, (1889) 23 QBD 400. 41Reynolds v. Times Newspapers Ltd.,(1998) 3 All ER 961 (CA).


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corporations have a “social and moral” duty to publish matters of public interest.42 Thus, the

view that, qualified privilege can be made available to press and media organizations, provided

that they can show that they have a social or moral duty to publish the information and a

corresponding public interest in receiving it, was adopted in catena of other cases also.43

(f) Lord Hoffman in the case of Jameel v. Wall Street Journal Europe,44 felt it necessary to

restate the Reynolds45 principles as he observed that the privileged rolled out in Reynolds were

addressed only in very general sense and in an effort to preclude any further rigid application

of the Reynolds privilege, he set forth a three prong test:

(i) Was the subject matter of the article a matter of public interest?

(ii) Was there justification for including the defamatory statements in the article?

(iii) Were the methods used in gathering and publishing news information “responsible

and fair”?

B[2]. THE STATEMENTS WERE MADE IN PUBLIC INTEREST:

(a) The public interest test for evaluating the substance of the article/ statements broadcasted

in an occasion is a question of law which ought to be decided by judges depending upon facts

& circumstances of each case.46 In the present case, indeed the statements uttered in the

interview and the subsequent debate that was carried out falls within the ambit of public interest

as Sartaj Singh had a duty of informing the general public about the happenings in the society.

(b) It has been held that as a class the public figures have, as the public officials have, access

to mass media communication both to influence the policy and to counter-criticism of their

views and activities. On this basis, it has been held that the citizen has a legitimate and

substantial interest in the conduct of such persons and that the freedom of press extends to

engaging in uninhibited debate about the involvement of public figures in public issues and

events.47 The counsel further submits that the law of defamation seeks to hold the balance

42Grenier v. Southam Inc., [1997] O.J. No. 2193 (QL). 43Leenen v. Canadian Broadcasting Corp., (2000) 48 O.R. (3d) 656 (S.C.J.), at p. 695, aff’d (2001), 54 O.R. (3d)

612 (C.A.). Also in: Young v. Toronto Star Newspapers Ltd., (2003) 66 O.R. (3d) 170 (S.C.J.), aff’d (2005), 77

O.R. (3d) 680 (C.A.).

44Jameel v. Wall Street Journal Europe, (2006)UKHLU.K.H.L.4444. 45 Supra, Note 40. 46Supra, Note 43. 47R. Rajagopal v. State of T.N., (1994 (6) SCC 632).


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equitably between the rights of the individual and the interest of the society and in doing sothe

scale always tilts in favour of communication which the interest of society demands.

(c) Moreover, even if we are to assume that the defendant had indeed uttered defamatory

statements against Wilson, the same should be view as nothing but a fair comment and

criticism. Statement averted by Rachel was verified and the same was publicized after checking

the credibility of the same. Hence the above three tests have been clearly satisfied.

(d) The counsel humbly submits that the greatest institutional hurdle in Indian defamation law

is that unlike the United States, it places no special significance on journalistic expression.

Hence the counsel humbly contends that the Indian Judiciary should recognize the invaluable

role played by free and vibrant media in democratic societies and grant them commensurately

protection against pressure & threats from government and societal interest that seek to muzzle

them.

ISSUE 3

3. WHETHER QUIBBLER TV IS VICARIOUSLY LIABLE FOR SARTAJ SINGH’S ACTIONS?

It is humbly submitted before this Hon’ble High Court that Quibbler TV cannot be made

vicariously liable for the acts of Mr. Sartaj Singh as he was appointed on contractual basis.[A]

None of the exceptions applicable to the rule of independent contractor stand satisfied.[B]

A. VICARIOUS LIABILITY IS NOT APPLICABLE:

(a).Generally, an employer will be held liable for any tort committed while an employee is

conducting their duties.48It is based on two legal maxims “qui facit per aliumfacit per se”49

which literally means “he who does an act through another is deemed to have done it himself”

and “respondeat superior”50 which means “let the superior be liable”.

(b). However the act of negligence on the part of the independent contractor cannot make the

employer liable.51 The counsel humbly submits that there is no as such direct relationship

between both of them. It is a longstanding principle of the common law that an employer will

48Markesinis, Johnston, Deakin, p. 665. 49H.E. Nasser Abdulla Hussain v. DCIT, (2003) 84 ITD 43 (MUM.). 50Safeway Stores, Inc. v. Barrack, 122 A.2d 457 (Md. 1956). 51Morgan v. Incorporated Central Council, (1936) 1 All E.R. 404.


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be vicariously liable for the tortious acts of an employee but not for the acts of an independent

contractor.52

(c) In the present case, it is clear from the given facts that Mr. Sartaj Singh was not an employee

of Quibbler Tv, but he was hired on a contractual basis.53 An independent contractor is a person

undertakes to produce a given result, but so that in the actual execution of the work, he is not

under the order and control of the person for whom he does it, and may use his own discretion

in things not specified beforehand.”54 As a general rule, the master is liable for the torts

committed by his servant, but an employer is not liable for the torts committed by an

independent contractor.55

B. EXCEPTIONS TO THE RULE OF INDEPENDENT CONTRACTOR NOT SATISFIED:

It is humbly contended that the counsel do submit to the fact that the rule of independent

contractor is not absolute and is subject to certain exceptions in which the master can be made

liable for the actions of the independent contractor. However, the counsel would also like to

contend that none of the exceptions to the rule of independent contractorship is applicable in

the present case as neither were the actions of Mr. Sartaj Singh inherently dangerous. B[1] no

was there an element of control by Quibbler TV B[2] making them unbound to the acts of

Sartaj Singh.

B[1].INHERENTLY DNAGEROUS ACTIVITY:

(a) Generally, businesses that hire independent contractors are absolved from any liability for

the wrongful acts of those independent contractors unless the work is “inherently dangerous

activity.” One of the most common limitations is found in those cases where one employs an

independent contractor to do work which is dangerous in the absence of special

precautions.56The concept is that businesses cannot contract away the responsibility for

dangerous activities.57An activity classified as "inherently dangerous" involves risks of harm

to others which may be reduced by taking proper and reasonable safety precautions.58It is

52Quarman v Burnett (1840) 151 ER 509. 53Paragraph 8, Moot Court Proposition, Page 2. 54Pollock on Torts, 15th ed., p.62, Adopted y McKardie, J. in Performing Rights Society ltd. v. Mtichell, etc.Ltd.,

(1924) 1 K.B. 762, 6767-768. Also in: Century Insuranc Co. Ltd. v. Northern Ireland Road Transport Board,

(1942) 1 All E.R. 491: (1942) A.C. 509. 55 R.K. Bangia, The Law of Tort, 24th edition 2017, Allahabad Law Agency. 56 Bower v. Peate (1876) L. R. 1 Q. B. Div. 321. 57Stout v. Johnson, 159 Wn. App. 344 (2011). 58Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991). Also in: Thompson v. Railroad, (1898) 170 Mass.

577, 49 N. E. 913.


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generaly a work to be done from which mischievous consequences will arise unless proper

safety measures are adopted.59and work which involves recognizable and substantial dangers

inherent in it, as distinguished from dangers collaterally created by the independent negligence

of contractors, which latter might take place on jobs themselves involving no inherent danger.60

(b) Where the danger arises from the manner of performing the task and is not a danger inherent

in the task itself, the work can be assigned to an independent contractor; and if such

independent contractor so negligently performs the task as to inflict injury upon another, the

contractor is liable and not the principal. 61

(c) In the present case, Mr. Sartaj Singh was hired as a news anchor62 which does not constitute

an inherently dangerous activity. Further, the Defendants have sufficiently proven vide issue 2

and 3 that there is no case of defamation as the statetements made by Ms. Rachel are completely

true. Additionally, even if we are to assume the contrary, Quibbler TV cannot be made laible

as the danger was collaterally created by Sartaj Singh by his negligence which took place

during the job itself involving no inherent danger.63

B[2].DOCTRINE OF CONTROL:

(a) An independent contractor is one who undertakes to produce a given result or perform a

particular work, but in the actual execution of that work he is not under the order or control of

the person for whom the work is done and he is at liberty to use his own discretion and

judgment.64 The Defendant submits that the test to be applied to find out whether some one is

an agent of another or is an independent contractor, is to find out whether there is any degree

of control by the one over the other. In case, there is no control, there can be no vicarious

liability.65

(b) In the present case, the Quibbler TV had no controld over the execution66 of the work

entrusterd to Mr.Sartaj Singh who was hired as an independent contractor. Though the work of

an news anchor was entrusted by the Quibbler TV however, Sartaj used his own means to

execute the work. The Quibbler TV only instructed on “what the work is” and not “how the

59Greer v. Callahan Constr. Co., 190 N.C. 632, 637, 130 S.E. 739, 743 (1925). 60Evans v. Elliott, 220 N.C 253, 258-59, 17 S.E.2d 125, 128 (1941). 61O'Hara v. Ladede Gas Light Co., rev'g (1912) 131 Mo. App. 428, 110 S. W. 642. 62Paragraph 5, Moot Court Proposition, Page 1. 63Supra, Note 60. 64 B. Govindarajulu Chettyv. L.A. Govindaraja Mudaliar, AIR 1966 Mad 332. 65 P. Ravichandran v. The Government Of Tamil Nadu,Writ Petition (MD) No.3432 of 2008. 66Ibid.


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work should be done” and in these circumstances, it cannot be made liable vicariously for the

act of Sartaj Singh as it had no actual control on the activites of the news anchor. This also

further proves that Mr. Sartaj Singh was in no way an agent of Quibbler TV.

(c) The Defendant further submits that the activities performed by Mr. Sartaj Singh does not

come under the ambit of a statutory duty67 so as to make Quibbler TV liable for the same nor

is the work which the contractor is hired to perform, on the face of it is unlawful.68 Thus viewed

from any angle, Quibbler TV cannot be made vicariously liable for the acts of Mr.Sartaj Singh.

C. EXEMPLARY DAMAGES NOT JUSTIFIED:

(a) Damages is the most important remedy which the plaintiff can avail of after the tort is

committed. Ordinarly, damages are equivalent to the harm suffered by the plaintiff. Damages

are usually compensatory in nature because the idea of civil alw is to compensate the injured

party. However, when insult or injury to the plaintiff’s feeling is caused, the court may award

an increased amount of damages known as exemplary damages.69 Since the object of such

damages is to deter and punish the awardee, it often “ confuses the civil and criminal function

of law”70

(b) Due to its extreme nature, such damages can only be allowed in cases where the damage

has been caused by oppressive, arbitrary, unconstitutional action by the servants of the

government and it did not extend to oppressive action by private corporations or individuals,

71or where the defendant’s conduct has been calculated by him to make a profit for himself

which may well exceed the compensation payable to the plaintiff,72 or where exemplary

damages are expressly stated or authorized by a statute. 73

(c) In the present case, as has been already proven extensively by the counsel vide issue 1 and

2, there is no instance of liability as the statements made by Rachel were completely true and

Mr. Sartaj Singh published it under Qualified Privilage. In these circumstances, none of the

67McGolderick v. Wabash R. Co., (1918) 200 Mo. App. 436, 200 S. W. 74. 68Supra, Note 64. 69 Dr. R.K. Bangia, Law of Torts, 24thed, 2017, Allahabad Law Agency. 70Rookes v. Barnard, (1964) AC 1129: (1964) 1 All ER 367. 71 Ibid. See Also: Wilkes v. wood, (1763) Loff. 1. 72Bell v. Midland Rail Co., (1861) 10 C.B. [N.S.] 287. 73Supra, Note 70.


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essentials required to award such a huge amount of damages are satisfied and thus Mr. Wilson’s

claim of damages worth 100 crores stands unjustified.

PRAYER

WHEREFORE, in light of the facts stated, issues raised, arguments advanced and authorities

cited, it is humbly prayed before this Hon’ble Court to:

• Dismiss the present suit as devoid of all merits.


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AND/OR pass any other order/orders as this Hon’ble Court deems fit and proper in the

circumstances of the given case and in the light of Justice, Equity and Good Conscience and

thus renders justice.

The Counsel pleads this Hon’ble Court to bind “Sacramentumhabet in se trescomites,

veritatem, justitiametjudiciumveritashabendaest in jurato, justitia et judicium in judice”

And for this act of kindness and justice the Defendants shall be duty bound and forever pray.

All of which is most humbly and reverently submitted.

PLACE: ________ ,India. S/d_____________

DATE: March, 2019 COUNSEL FOR THE DEFENDANTS

dispute relating to defamation and character …3 2nd surana & surana and dr. m.s. ramaiah...

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