dispute relating to defamation and character …p a g e | 3 2nd surana & surana and dr. m.s....

P a g e | 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 P L A I N T I F F

BEFORE THE HON’BLE HIGH COURT OF JUDICATURE AT DELHI

DISPUTE RELATING TO

DEFAMATION AND CHARACTER ASSASINATION

O/S NO _____ OF 2018

(Under Order VII, 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 PLAINTIFF

COUNSEL FOR THE PLAINTIFF

WS19P


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TABLE OF CONTENTS

INDEX OF AUTHORITIES 4

I. BOOKS

II. LEXICONS

III. STATUTES

IV. JOURNALS AND ARTICLES

V. CONVENTIONS AND TREATIES

LIST OF ABBREVIATIONS 6

TABLE OF CASES 8

STATEMENT OF JURISDICTION 12

STATEMENT OF FACTS 13

STATEMENT OF ISSUES 14

SUMMARY OF ARGUMENTS 15

ARGUMENTS ADVANCED 16

ISSUE 1: WHETHER RACHEL IS LIABLE FOR DEFAMING WILSON? 16

A. THE STATEMENT MADE BY MS. RACHEL WAS DEFAMATORY. 16

B. THE STATEMENT SPECIFICALLY REFERRED TO MR. WILSON. 17

C. THE STATEMENT WAS PUBLSIHED. 17

D. MALICIOUS INTENT IS LUCIDLY PRESENT; DEFENCE OF TRUTH NOT

AVAILABLE. 18

E. ARGUENDO. 18

E[1]. THERE IS NO HARASSMENT IN THE PRESENT CASE. 19


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E[2]. THERE IS NO STALKING IN THE PRESENT CASE. 19

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

PRESS, SPEECH AND EXPRESSION? 20

A. GUARANTEES OF PRESS FREEDOM. 20

B. DEFAMATION AND FREEDOM OF PRESS. 20

C. UNBRIDLED POWERS OF MEDIA HAS BEEN MISUSED. 21

D. QUALIFIED PRIVILAGE NOT APPLICABLE . 22

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

A. VICARIOUS LIABILITY IS APPLICALE. 24

A[1]. LIABILITY BY RATIFICATION. 25

A[2]. DOCTRINE OF RETAINED CONTROL . 26

A[3]. PERSONAL INTERFERENCE BY QUIBBLER TV. 27

B. SARTAJ IS A REPRESENTATIVE AGENT OF QUIBBLER TV. 27

ISSUE 4: WHETHER THE DAMAGES SOUGHT BY WILSON IS JUSTIFIABLE? 28

A. FACTORS TO BE CONSIDERED BEFORE GRANTING DAMAGES. 28

B. MENTAL AGONY SUFFERED BY WILSON. 29

C. BUSINESS LOSS SUFFERED BY WILSON. 30

D. CLAIM OF EXEMPLARY DAMAGES. 30

PRAYER 31


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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 Defense 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


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U/Art. Under Article

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. Abk Prasad v. Union of India, 2002 (3) ALT 332, 2002 Cri LJ 246………………………

22

2. ArunJaitley v. ArvindKejriwal, CS(OS) 236/2017………………………………………...

17

3.Bihta Co-Operative Development Cane Marketing Union Ltd v.The Bank

ofBihar &Ors, AIR 1967 SC 389………………………………………………………… 26

4. Colonial Mutual Life, (1931) 42 CLR 41 at 50…………………………………………… 28

5. Court on its Own Motion v. State and Ors.,146 (2008) DLT 429………………………... 21

6.Dr. M.K. Muneer v. State Of Kerala, Crl.MC.No. 1583 of 2005…………………………..

28

7.Filmistan Distributors (India) v. HansabenBaldevdasShivlal, AIR (1986) Guj 35………...16

8.GirishChndra Das v. GillandersArbutnot& Co., (1869) 2 Beng LR (OCJ) 140…………. 25

9.GovindYadav v. New India Insurance Co. Ltd., (2011) 10 SCC 683…………………. 24,30

10.Grant v. Torstar Corp., (2009) SCC 61…………………………………………………... 18

11.H.C. Chandel v. Union of India &Anr, 96 (2002) DLT 174…………………………….. 29

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

13.Hindustan Radiators Co v. Hindustan Radiators Ltd, AIR (1987) Delhi 353……………. 16

14.Immamuddin&Ors v. Khatoon&Ors, AIR 1977 Raj 142……………………………… 26

15.Indian Council of Legal Aid and Advice v. State, WP © No. 17595/2006.

decided on 27th November, 2006…………………………………………………………. 21

16.Indian Express Newspaper (Bom) Pvt Ltd v. Jagmohan, AIR (1985) Bom 229………….

16

17.Jagmal Singh v. State of Uttar Pradesh, AIR (1991) SC 1928…………………………… 21


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18.Khawar Butt v. AsifNazir Mir &Ors, CS(OS) 290/2010………………………………….

17

19.L.Lakshmanan v. G.Jayapalan, Cr.MP.Nos.1 to 1/2006…………………………………. 26

20.M. Jainoon v. M. Ammanulla Khan & 3 others, AIR (2000) Mad 381………………….. 29

21.MissKamalini Manmade v. Union Of India, (1967) 69 BOMLR 512…………………... 20

22.PandeySurendraNathSinha v. BageshwariPd, AIR (1961) Pat 164………………… 18,23

23.PurushothamLal v. Prem Shankar, AIR (1966) All 377…………………………………..

16

24.Rajendra Sail v. MP High Court Bar Associaition, (2005) 6 SCC 109…………………...

21

25.RamJethmalani v. SubramaniamSwamy, AIR (2006) Delhi 300………………………... 26

26.RaniShamasundari Debi v. DukhuMandal, (1869) 2 Beng LR (ACJ) 227 (229)……….. 25

27.Re, Harijai Singh (1996) 6 SCC 466……………………………………………………... 22

28.Rustom K. Karanjia&Anr v. Krishnaraj M.D. Thackersey,AIR 1970 Bom 424……. 17,18

29.S. Bangarappa v. Ganesh Narayan Hegde&Anr, ILR 1984 KAR 278…………………. 28

30.Sabhapathi v. Huntley, AIR 1938 PC 91………………………………………………….23

31.Sahib Singh v. State of Uttar Pradesh, AIR 1965 SC 1451………………………………21

32.Salendandasi v. GajjalaMalla Reddy, AIR 2008 (NOC) 299 (A.P.)…………………….. 21

33.Sharma v. Srikrishna, AIR 1959 SC 395 (402)…………………………………………... 20

34.SheetalBhat&Ors. v. Winner Raina&Anr, IA No. 01/2018…………………………... 28

35.Shivnandan Sharma v. The Punjab National Bank Ltd, AIR (1955) SC 404……………. 25

36.ShriVasudeva Bank Ltd. v. Union of India, 1990 (48) ELT 214 Mad…………………... 19

37.State Of Rajasthan v. Shera Ram @ Vishnu Dutta, (2012) 1 SCC 602…………………...

19

38.Surendra Mishra v. State of Jharkhand , (2011) 3 SCC (Cri.) 232………………………..

19

39.Sushil Kumar Gupta v. Jindal Charitable Trust, CM Nos. 2688/2017 & 2690/2017…….

17

40.T.G. Goswami v. The State AIR 1952 Pepsu 165………………………………………... 22

41.TarapadaMajumdar v. K.B. Ghosh And Co, AIR (1979) Cal 68………………………… 18

42.Umesh Kumar v. State of Andhra Pradesh and Anr., (2013) 10 SCC 591………………..

16

https://indiankanoon.org/doc/1259566/


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43.VenkatasaNaikar v. T. SrinivasaChariyar, (1869) 4 MHC 410…………………………. 25

44.W.B. Shanthiv.Arunachalam, (2015) 1 LW 555………………………………………… 16

INTERNATIONAL CASES:

1. Australian Newspaper v. Bennett, (1894) AC 288……………………………………….. 16

2.Barbaro v. Amalgamated Television Services Pvt Ltd, (1985) 1 NSWLR 30…………….. 18

3.Barry v. St. Louis (1852) 17 Mo. 121………………………………………………………

25

4.Botoef' v. Peate, I.Q.B.D. 321, 45 L.J.Q.B. 446……………………………………………

26

5.Bromage v. Prosser, (1825) 4 B & C 247…………………………………………………..

18

6.Burgess v. Gray, (1845) 1 CB 578………………………………………………………

26,27

7.Cf. Australian Consolidated Press v. Uren, (1967) 3 All ER 523 (526) PC………………..

30

8.Capital& Counties Bank v. Henty, (1882) LR 2 AC 772…………………………………. 16

9.Cassell& Co. v. Broome, (1972) 1 All ER 801…………………………………………… 30

10.Citizens Life Assurance Company v. Brown, (1904) AC 423…………………………… 25

11.City of Independence v. Slack (1895) 134 Mo. 66………………………………………..

25

12.Cox Broadcasting Corporation v. Cohn, (1975) 420 US, 469 (487n)……………………. 21

13.Dalton v. AUR, 6 A.C. 740, 50 L.J.Q.B. 689……………………………………………..26

14.Duke of Brunswick v. Harmer, (1849) 14 QBD 185……………………………………...

17

15.Eastern Construction Co. v. National Trust Co., (1914) AC 197 (213)

110 LT 321………………………………………………………………………………... 25

16.Gayle v. Foundry Co. (1903) 177 Mo. 427………………………………………………..

25

17.Gitlow v. N.Y. (1925) 268 US 652………………………………………………………..

20


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18.Glasgow Corporation v. Lorimer, (1911) AC 209………………………………………...

25

19.Greville v. Chapman, (1844) 5 QB 731…………………………………………………...

16

20.Godfrey v. Demon Internet Limited, (2001) QB 201……………………………………..17

21.Hillman’sAriways, Ltd v. SoceitteAnonmeD’EditionsAeronautiques

Internationals (1934) 2 KB 356…………………………………………………………... 25

22.Hollis v. Vabu Pty Ltd, (2001) HCA 44…………………………………………………..27

23.Horrocks v. Lowe, (1974) 1 All ER 662 (666, 671) HL…………………………………. 22

24.Hughes v. Pef'cival, 8 A.C. 443, 52 L.J.Q.B. 719………………………………………... 26

25.Lewis v. Daily Telegraph, (1962) 2 All ER 698 (717) (CA)……………………………...

30

26.Ley v. Hamilton, (1936) 153 LT 384……………………………………………………...

28

27.Loth v. Columbia Theatre Co. (1905) 197 Mo. 328………………………………………25

28.Manson v. Associated Newspapers, (1965) 2 All ER 954 (958)………………………….

28

29.McCarey v. Associated Newspapers, (1964) 3 All ER 947……………………………... 29

30.Munroe v. Hopkins, (2017) EWHC 422 (QB)…………………........................................16

31.Nelson v. Polley, 1996 OK 142, 916 P.2d 1369, 1374 ( f.n. 23)………………………….

27

32.Ogilive v. Punjab Akhbarat& Press Co, (1929) ILR 11 Lah 45…………………………. 29

33.Parnell v. Walter, (1980) 24 QBD 441…………………………………………………… 28

34.Penny v. Wimbeldon, (1899) 2 Q.B. 72………………………………………………….. 26

35.Performing Rights Society ltd. v. Mtichell, Ltd, (1977) 106 ITR 11……………………. 26

36.Picka,-d v. Smith, 10 C.B. (N.S.) 470……………………………………………………. 26

37.Radio 2UE Sydney Pty Ltd v Chesterton,(2009) HCA 16……………………………....

16

38.Roberts v Bass, (2002) HCA 57………………………………………………………….. 18

39.Roberts v. Daniel, (1888) 5 TLR 542…………………………………………………….. 28

40.Royal Aquarium v. Parkinson, (1892) 1 QB 431 (444)…………………………………...

23

http://www.thelawproject.com.au/blog-case-summaries/radio-2ue-sydney-v-chesterton-2009


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41.Rubber Improvement Ltd v. Daily Telegraph Ltd, (1964) AC 234……………………….

16

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

24

43.Schering Chemicals v. Falkman (1981) 2 All ER 321 (330, 347) CA…………………… 20

44.Short v J W Henderson Ltd, (1946) 62 TLR 427………………………………………… 27

45.Sim v. Stretch, (1936) 2 All ER 1237……………………….............................................18

46.Sturt v. Blagg (1847) 10 QB 906………………………………………………………….

18

47.Stuart v. Bell, (1891) 2 QB 341…………………………………………………………...23

48.Sweeney v, Boylan Nominees Pvt Ltd, (2006) HCATrans (3rd march 2006)

at 590……………………………………………………………………………………... 28

49.Tournier v. National Provincial and Union Bank of England,(1924) 1 KB 461………...

16

50.Union Steamship Co. v. Claridge, (1894) AC 185……………………………………….. 26

51.Various Claimants v. Barclays Bank plc (Dr Bates (deceased) and

Barclays Group Litigation) (2017) EWHC 1929 (QB)……………………………………….

26

52.Wilson v. United Counties Bank, (1920) AC 102………………………………………... 28

53. Youssoupoff v. M-G-M, (1934) 50 TLR 581…………………………………………….

28


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STATEMENT OF JURISDICTION

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

Order VII 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 suit is also maintainable by virtue of the Delhi High Court Original Side Rules, 20181 in

CS.OS.No______ of 2018 (Civil Suit Original Side).

1Delhi High Court Original Side Rules, 2018.


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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:


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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

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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ISSUE 4

WHETHER THE DAMAGES SOUGHT BY WILSON IS JUSTIFIABLE?

SUMMARY OF ARGUMENTS

WHETHER RACHEL IS LIABLE FOR DEFAMING WILSON?

It is humbly submitted before this Hon’ble High Court that Rachel is liable for defaming

Wilson as the statements made by her were defamatory and they were directed towards Wilson

and were also published. Moreover, the defence of truth is not available to Ms. Rachel in the

present suit as the statements made by her were not true and were covered with malicious intent

on her part.

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

SPEECH AND EXPRESSION?

It is humbly submitted before this Hon’ble High Court that Sartaj Singh is not immune from

his liability as his right to freedom of press, speech and expression is constricted by the

reasonable restrictions, one of which is also defamation. Moreover, one’s right to reputation

and privacy acts as a further restriction on the unbridled powers of press. The denfence of

qualified privilege is also not available in the present case due to presence of malice and

reckless reporting on part of Sartaj Singh.


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

It is humbly submitted before this Hon’ble High Court that Quibbler TV is vicariously liable

for the acts of Sartaj Singh as the actions of Sartaj Singh were subsequently ratified by Quibler

TV. The Doctrine of Retained Control will also come to play in the present case. Further, there

was personal interference by the channel and SartajSingh was in a position of a representative

agent thus making the channel vicariously liable.

WHETHER THE DAMAGES SOUGHT BY WILSON IS JUSTIFIABLE?

It is humbly submitted before this Honb’le High Court that the damages sought are justified as

all the factors to be considered before awarding exemplary damages are satiated in the present

suit as Mr. Wilson suffered mental agony, loss of privacy and reputation along with monetory

losses thereby justifying the claim of exemplary damages. Further, he also lost furture business

opportunities thereby further justifying his claim for damages.

ARGUMENTS ADVANCED

ISSUE 1

1. WHETHER RACHEL IS LIABLE FOR DEFAMING MR WILSON?

It is the humble submission of the Plaintiff that Ms Rachel is liable for defaming Mr Wilson,

as the statement made by her were defamatory [A] it specifically referred to the Defendant [B]

and the statement was published [C]. Further, the defense of truth is also not applicable in the

present case owing to the malicious propaganda she made on Quibbler TV2

A. THE STATEMENT MADE BY RACHEL WAS DEFAMATORY:

(a)From the facts of the instant case, it is explicit that Ms Rachel leveled numerous allegations

on Mr. Wilson in the interview aired by Quibbler TV.3 The litmus test for what amounts to

being a defamatory statement is generally accepted as a statement that “tends to lower the

2Paragraph 4, Moot Court Proposition, Page 1. 3 Ibid.


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plaintiff in the estimation of the right thinking members of the society generally”.4Or one which

exposes a person to ‘contempt, hatred or ridicule, or tends to injure him in his profession or

trade, or causes him to be shunned or avoided by his neighbours.5 The language used by Ms

Rachel was extremely vituperative. The usage of words like “stalked” and “harassed” pose a

very harsh comment on the morale and character of Mr Wilson, who was in a very respectable

position in the society.6

(b)The statement made by Ms Rachel, when understood in its ordinary and natural meaning7,

when the whole of it is read together8 is highly defamatory in nature. The remarks made by her

were highly unrelenting which caused mental agony to Mr Wilson9 ; sabotaged his reputation10;

also led to him losing the biggest deal of his lifetime11, for which he had toiled day in and day

out.

B. THE STATEMENT SPECIFICALLY REFERRED TO WILSON:

(a)It is explicit from the facts of the given case that Ms Rachel had specifically referred to Mr

Wilson while making the defamatory statement on air on Quibbler TV.12 Further, the timing of

making such a statement13also explicitly shows that the statement definitely referred to Mr

Wilson. So, the Plaintiff humbly contends that this limb of defamation of the statement

specifically referring to the Plaintiff is also satiated.

C.THE STATEMENT WAS PUBLISHED:

(a)The third essential that has to be satiated for establishing a case of defamation is that the

statement has to be published.14 Publishing can be defined as the action of making something

generally known.15 The Plaintiff contends that Ms Rachel made a defamatory statement on

4Sim v. Stretch, (1936) 2 All ER 1237. Also in: Munroe v. Hopkins, (2017) EWHC 422 (QB);Umesh Kumar v.

State of Andhra Pradesh, (2013) 10 SCC 591. 5Tournier v. National Provincial and Union Bank of England, (1924) 1 KB 461. Also in: Radio 2 UE Sydney

Pty Ltd. v. Chesterton, (2009) HCA 16;W.B. Shanthi v.Arunachalam, (2015) 1 LW 555; Greville v. Chapman,

(1844) 5 QB 731. 6Paragraph 1, Moot Court Proposition, Page 1. 7 Capital & Counties Bank v. Henty, (1882) LR 2 AC 772. Also in: Indian Express Newspaper (Bom) Pvt. Ltd.

v. Jagmohan, AIR (1985) Bom 229; Rubber Improvement Ltd. v. Daily Telegraph Ltd., (1964) AC 234. 8 Australian Newspaper v. Bennett, (1894) AC 288. 9PurushothamLal v. Prem Shankar, AIR (1966) All 377. Also in: Hindustan Radiators Co. v. Hindustan Radiators

Ltd., AIR (1987) Delhi 353; Filmistan Distributors (India) v. HansabenBaldevdasShivlal, AIR (1986) Guj 35. 10Sushil Kumar Gupta v. Jindal Charitable Trust, CM Nos. 2688/2017 & 2690/2017. 11Paragraph 6, Moot Court Proposition, Page 1. 12Ibid. 13Paragraph 2, Moot Court Proposition, Page 1. 14Rustom K. Karanjia&Anr.v. Krishnaraj M.D. Thackersey, AIR 1970 Bom 424. 15Merriam- Webster Dictionary, since 1824.




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air.16 Making a statement on a media platform, which is defamatory, definitely amounts to

publication. 17 Based on this defamatory statement, the TV channel also started a Twitter

Campaign with the hash tag #wilsonthepervert and they also conducted a debate following Ms

Rachel’s interview18.

(b)There is a possibility that this hash tag would have been re- tweeted several times and every

re-tweet is a separate cause of action that amounts to being defamatory.19The above mentioned

acts have caused serious damage to the image, reputation and goodwill of Wilson before the

whole society which is his asset and which takes years of hard work to earn.

D. MALICIOUS INTENT IS LUCIDLY PRESENT; DEFENSE OF TRUTH NOT AVAILABLE:

(a)In every false and defamatory statement, malice is presumed 20 . However, when the

Defendant takes and substantiates the defense of truth or fair comment, the Plaintiff has to

prove express or actual malice to rebut the same.21 The allegation of malice means nothing

more than that the Defendant published a defamatory statement without a lawful excuse.22 In

the instant matter, Ms Rachel has claimed that truth is her sole defense23; however, this defense

is not available to her as she had a malicious intention.

(b)Ms Rachel chose to make a statement24, exactly one day prior to Mr Wilson signing a very

important deal with Umbrella Corporation25 Further, it is clear from the facts of the instant case

that Ms Rachel could not stop blaming Wilson for ruining her career26; this ipso facto proves

16Paragraph 4, Moot Court Proposition, Page 4. 17ArunJaitley v. ArvindKejriwal, CS(OS) 236/2017. 18Paragraph 5, Moot Court Proposition, Page 1. 19Duke of Brunswick v. Harmer, (1849) 14 QBD 185. Also in: Godfrey v. Demon Internet Limited, (2001) QB

201; Khawar Butt v. AsifNazir Mir &Ors., CS(OS) 290/2010. 20Rustom K. Karanjia&Anr.v.Krishnaraj M.D. Thackersey, AIR (1970) Bom 424. Also in: TarapadaMajumdar v.

K.B. Ghosh And Co., AIR (1979) Cal 68. 21Bromage v. Prosser, (1825) 4 B & C 247. 22PandeySurendraNathSinha v. BageshwariPd, AIR (1961) Pat 164. Also in: Grant v. Torstar Corp, (2009) SCC

61. 23Paragraph 7, Moot Court Proposition, Page 2. 24Paragraph 4, Moot Court Proposition, Page 1. 25Paragraph 3, Moot Court Proposition, Page 1. 26Paragraph 21, Moot Court Proposition, Page 4.


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that she does have an ulterior motive and a malafide intention in making such baseless

allegations.Malice can be implied from the publication of this defamatory statement27

E.ARGUENDO:

(a)The Plaintiff has already established that when malice is present, the defense of truth is not

available28. However, even if his Hon’ble High Court is of the opinion that there is no malice

on the part of Ms Rachel, even then, the defense of truth is not available to her as there is not

even an iota of truth in the statements made by her. She has claimed that Mr Wilson “stalked”

and “harassed29” her. Both are crimes defined by the Indian Penal Code, 1850 and thus, at this

juncture the Plaintiff would like to examine the definitions of both these terms.

E [1]. THERE IS NO “HARASSMENT” IN THE GIVEN CASE:

(a) The acts which amount to sexual harassment are mentioned in the Indian Penal

Code.30When the facts of the instant case are comprehended, it is crystalline that none of the

limbs stand satisfied. Mr Wilson had never indulged in such kind of acts with Ms Rachel. In

fact, it was Ms Rachel who hugged and kissed him about which he was very apprehensive and

hesitant31.

(c)The Plaintiffs would also like to point out that it was purely an administrative decision by

Wade Enterprises to swap Ms Rachel’s department instead of changing Mr Wilson’s as he was

an asset to the Securities and Investments Division32. Mr Wilson had no say in this decision.

Therefore, there is no element of truth in Ms Rachel stating that she was “harassed” as the acts

of Mr Wilson do not amount to harassment as defined by the Indian Penal Code.

27Supra Note 20. Also in: Sturt v. Blagg (1847) 10 QB 906. 28Roberts v. Bass, (2002) HCA 57. Also in: Barbaro v. Amalgamated Television Services Pvt Ltd, (1985) 1

NSWLR 30. 29Paragraph 4, Moot Court Proposition, Page 1. 30 S. 354A, Indian Penal Code, 1860. (Criminal Law Amendment Act, 2013). 31Paragraph 12, Moot Court Proposition, Page 2. 32Paragraph 18, Moot Court Proposition, Page 3.


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E [2]. THERE IS NO “STALKING” IN THE PRESENT CASE:

(a) Ms Rachel has also claimed that Mr Wilson stalked her33 which is a criminal offense.34

Based on the legal maxim, “actus non facitreum nisi mens sit rea”, no act amounts to a crime

unless accompanied with a guilty mind.35 The Plaintiff would like to most reverently submit

that Mr Wilson called Ms Rachel continuously and texted her repeatedly only to ensure that

there was no awkwardness in their relationship36.The acts done were in good faith andno act

done in good faith can constitute a crime37. Therefore, the Plaintiff most reverently submits

that the actions of Mr Wilson do not amount to stalking also as he had no mensrea and this

actusreus does not fall under the definition of neither “harassment” nor “stalking”

Summing up, the Plaintiff has sufficiently established that the statements made by Ms Rachel

on Quibbler TV are inarguably defamatory and the case clearly falls under the purview of

defamation. Further, the defence of sole truth is also not applicable as it has been clearly

proven.

ISSUE 2

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

PRESS, SPEECH & EXPRESSION?

It is humbly submitted before this Hon’ble Court that Sartaj Singh cannot seek immune for

defaming Wilson as his right to freedom of speech and expression is subject to reasonable

restrictions which includes defamation within its ambit.

A. GUARANTEE OF PRESS FREEDOM:

(a) The freedom of press in Indian Constitution flows from freedom of speech & expression

which is guaranteed to ‘all citizens’ under Art.19(1)(a), thus the Press stands on no higher

footing than any other citizen, and cannot claim any privilege as distinct from those of any

other citizen.38 If no guarantee of individual right can be absolute, so is the freedom of the

33Paragraph 4, Moot Court Proposition, Page 1. 34S. 354D, Indian Penal Code, 1860.(Criminal Law Amendment Act, 2013). 35Surendra Mishra v. State of Jharkhand , (2011) 3 SCC (Cri.) 232. Also in: State Of Rajasthan v. Shera Ram @

Vishnu Dutta, (2012) 1 SCC 602. 36Paragraph 15, Moot Court Proposition, Page 3. 37Jagmal Singh v. State of Uttar Pradesh, AIR (1991) SC 1928. Also in: ShriVasudeva Bank Ltd. v. Union of

India, 1990 (48) ELT 214 Mad. 38Sharma v. Srikrishna, AIR 1959 SC 395 (402).

https://indiankanoon.org/doc/1259566/


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Press, must be reconciled with the collective interests of the society, otherwise known as the

‘public interest’39.

(b)Freedom of speech & expression cannot be taken to mean absolute freedom to say or write

whatever a person chooses recklessly and without regard to any person’s honour& reputation.

Defamation, being one of the exceptions to the freedom of expression, as enumerated in Article

19 (2) of the Constitution, it follows that a Press would be liable for defamation, like any other

individual, if the matter printed or published is defamatory of a person.

(c) It is humbly contended that the freedom of the press is extolled as one of the great bulwarks

of liberty. However, it does not mean that the press is free to ruin a reputation or to break a

confidence misunderstood. or to pollute the course of justice or to do anything that is unlawful.

Press can publish whatever it chooses to publish. But it does so at its own risk. If they damage

the reputation of innocent people, they may be made liable in damages.40

B. DEFAMATION AND FREEDOM OF PRESS:-

(a) Just as the freedom of the press is necessary for the dissemination of information about

public affairs and other matters of public interest, it is equally in the public interest to see that

not merely the reputation of an individual but his private affairs, which are unrelated to public

affairs, should be protected from unwanted publicity in the press, particularly in modern times,

when the press is overstepping, in every direction, the obvious bounds of propriety and of

decency41.

(b) In case of grievance ventilated by individuals on ground that defamatory statements were

deliberately broadcasted and publicized, the Court must try to equally balance the reputation

of the concerned aggrieved party on one hand and freedom of press on the other. The journalists

are expected to be careful and cautious while proceeding to make publications.42 Reporting of

distorted and deviated versions with comments, without proper verification of facts, might not

39Gitlow v. N.Y. (1925) 268 US 652; Kochuni v. State of Madras, AIR 1960 SC 1080(1099). 40Schering Chemicals v. Falkman, (1981) 2 All ER 321 (330, 347) CA. 41Cox broadcasting Corporation v. Cohn, (1975) 420 US, 469 (487n).

42Salendandasi v. GajjalaMalla Reddy, AIR 2008 (NOC) 299 (A.P.).


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fall within the umbrella of protective journalism, the Court ruled. Such defamatory statements

made in publication could not be warded off under the guise of freedom of press.

C. UNBRIDLED POWER OF MEDIA HAS BEEN MISUSED:-

(a) The media has wide powers in impressing the minds of the people and it is essential that

persons responsible for broadcasting anything on air should take reasonable care and

circumspection before propagating anything which tends to harm the reputation of a person.

Reckless comments ought not to be protected.43

(b) The reach of the media is to every nook and corner of the world. A large number of people

tend to believe as correct that which appears in the media. For these reasons alone, the mass

media has to be cautious while disseminating news.44 It is obligatory that those concerned with

the media must maintain high professional standards and are obliged to verify the correctness

of the news circulated. Publication of false news cannot be regarded as a public service, but a

disservice to the public.45

(c) Judiciary periodically emphasizes the need of maintaining journalistic discipline in

reporting cases. The freedom of press does not lay in highlighting news of commercial value

or which is of sensational value.46 Hence, Power of press must be carefully regulated and must

reconcile with a person's fundamental right to privacy. Art.19 (1) (a) does not give free hand

to publish defamatory matter under the guise of free expression. A journalist shall not distort

any fact or publish information which he knows to be false or does not believe to be true; nor

shall he allow his personal interest to influence his professional conduct. Journalist must be

conscientious in disseminating news. It is the duty of a true and responsible journalist to strive

to inform the people with an accurate and impartial statement of news. As far as facts and

information are concerned, they must be truthful, objective, comprehensive and without any

distortion. It is a great responsibility not to disseminate false news, because, their statements

have a much greater circulation and impact, than those of an individual47.

(d) Sartaj Singh should have been more cautious while making scandalous imputations against

Mr.Wilson since the high position and status of Quibbler TV and their method of publicizing

43 Sahib Singh v. State of U.P., AIR 1965 SC 1451 : (1965) 2 CrLJ 1126 (Cal). 44Rajendra Sail v. MP High Court Bar Associaition, (2005) 6 SCC 109. 45Court on its Own Motion v. State and Ors.,146 (2008) DLT 429. 46Indian Council of Legal Aid and Advice v. State WP © No. 17595/2006 decided on 27th November, 2006. 47Re, Harijai Singh, (1996) 6 SCC 466.


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did more harm, than the imputation which was actually made by Rachel, because some sanctity

is generally attached to what is broadcasted in the media. The defense of fair comment only

protects statements of opinion, it does not extend to defamatory allegation of facts48.Freedom

of expression or freedom of press would not certainly include freedom to defame49.

(e) Moreover, Sartaj Singh, with no iota of doubt, breached the Code of Journalistic ethics that

has been drafted by the Press Commission of India in its report of 1954.50 A grave concern and

dismay is the decline of ethical and professional standards among journalists. The present case

is the manifestation of the general erosion of the professional values of the journalists; hence

the counsel humbly prays that such unethical practices must not be given protection.

D. QUALIFIED PRIVILEGE NOT APPLICABLE:-

(a) In particular circumstances a person is allowed to make defamatory statements so as to incur

no liability even if the statement be untrue. A defence founded on such a right is called the

defence of ‘privilege’. When an occasion of qualified privilege exist a person, provided he is

not actuated by malice, is entitled to make defamatory statements about another51.

(b) If the defense of qualified privilege sought to rely, it is for the defendant to prove the facts

and circumstances which establish that the occasion was privileged. If he does so, the burden

of showing actual or express malice rests upon the plaintiff, and, if this is shown,

communications made even on a privileged occasion, can no longer be regarded as privileged

communications.52 Statement is privileged, only if it is made under certain limits; if such limits

are disregarded there is an ‘excess of privilege’ which will be an evidence of malice and destroy

the privilege. Malice need not be ‘express malice or ill-will’, it would include any ‘indirect or

improper motive’; motive other than a sense of duty or interest53.

(c) Defence of Privilege is ruled out by establishing the malice on the part of defendants. Firstly

Sartaj Singh & the Quibbler TV recklessly without verifying the statements claimed by Rachel

circulated widely for cheap publicity54; further a dubious and suspicious notion is shaped since

48T.G. Goswami v. The State ,AIR 1952 Pepsu 165. 49Abk Prasad v. Union Of India, 2002 (3) ALT 332, 2002 Cri LJ 2464. 50https://www.livelaw.in/the-code-for-journalistic-ethics/; http://presscouncil.nic.in/OldWebsite/NORMS-

2010.pdf (accessed on 22.12.2018). 51Horrocks v. Lowe, (1974) 1 All ER 662 (666, 671) HL. 52Pandey Surendra Nath Sinha v. Bageshwari Pd., AIR 1961 Pat 164. 53Stuart v. Bell, (1891) 2 QB 341. 54Royal Aquarium v. Parkinson, (1892) 1 QB 431 (444).

https://www.livelaw.in/the-code-for-journalistic-ethics/

http://presscouncil.nic.in/OldWebsite/NORMS-2010.pdf

http://presscouncil.nic.in/OldWebsite/NORMS-2010.pdf


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such a defamatory statement, which is sternly alarming the character and reputation of Wilson,

was publicized through the medium of press, which has its impact on the nook and corner of

the world, a day prior to the Wilson’s important business deal which would eventually turn him

into the Country’s Youngest Billionaire. The day of publicizing the news of such a great

magnitude builds skepticism. Hence, Quibbler TV inorder to raise its own economic benefits

(TRP ratings) tried to pull down the fame and prominence of Mr. Wilson. A finding on the

question of malice in an action of defamation is a question of fact55, thus, the malice on the part

of Quibbler TV and Sartaj Singh has been established with the facts of the case at hand, and

therefore, the defense of qualified privilege has been excluded.

(d)Summarizing the entire issue, Sartaj Singh cannot claim protection u/freedom of press as

the facts suggest that there is a deliberate, conscious and malicious repetition of defamatory

statements against Wilson. Though defamatory statements were initially given by Rachel;

neither the Quibbler TV nor Sartaj Singh took any steps to verify the truth in the matters

asserted by Rachel; without proper authentication, Sataj Singh carried out a two hour story on

prime time wherein the alleged personal conflict between Rachel and Wilson was dragged in

to question his professional capacity. Further a twitter campaign #Wilsonthepervert has also

been made; thus repeated defamation and character assassination has been made by the

defendants. Moreover, the right to reputation and privacy had been infringed by unwarranted

interference and degrading the character of Wilson in the minds of general public. Hence Sartaj

Singh must neither be given immunity from liability under Art.19 (1) or under qualified

privilege; as his act is in direct breach of journalistic ethics and values.

ISSUE 3

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

The Plaintiff humbly submits that Quibbler TV is liable for Mr. Sartaj Singh’s actions as (A)

vicarious liability is applicable- (A1) by virtue of ratification; (A2) doctrine of retained control;

(A3) personal interference of the channel; also, (B) Mr. Sartaj Singh is a representative agent

of Quibbler TV.

A. VICARIOUS LIABILITY IS APPLICABLE:

55Sabhapathi v. Huntley, AIR 1938 PC 91.


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(a) Generally, a person is not made liable for the acts of another person, except in cases of

vicarious liability. Vicarious liability refers to the imputed responsibility of one person for the

acts of another.56 It is based on two legal maxims “qui facit per aliumfacit per se”57 which

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

“respondeat superior”58 which means “let the superior be liable”.

(b) From the facts of the given case, it is crystalline that Quibbler TV has denied any kind of

responsibility in the present defamation suit as Mr. Sartaj Singh is hired on a contractual basis.59

A contractor can be defined as “who undertakes to produce a given result, so that in actual

execution of the work, he is not under the order or control of the person for whom he does it,

he may use his own discretion in things not specified beforehand.60” As a general rule, the

master is not liable for the torts committed by an independent contractor engaged by him.61

However, this rule is subject to some exceptions, which will be applicable in the present case.

(c) The Plaintiff further submits that a corporation is also liable for the slander or libel published

by its agent or officers within their scope of authority in the same way as an individual.62 Their

liability rests on the same grounds.63

A[1].LIABILITY BY RATIFICATION:

(a) A master can be held liable for the acts of an independent contractor when he subsequently

ratifies his actions64. Ratification is a principal's approval of an act of its agent that lacked the

authority to bind the principal legally. 65 Ratification is based on the maxim, “Omnis

ratihabitioretrotrahitur et mandato priori aequiparatur”, which literally means every

ratification of an act relates back and thereupon becomes equivalent to a previous request. The

essential considerations which arise before a person can be held liable for a tort by ratification

are:

56 John A. Yogis, Q.C., Canadian Law Dictionary, 5th ed., (New York: Barron’s, 2003). 57H.E. Nasser Abdulla Hussain v. DCIT, (2003) 84 ITD 43 (MUM.). 58Safeway Stores, Inc. v. Barrack, 122 A.2d 457 (Md. 1956). 59Paragraph 8, Moot Court Proposition, Page 2. 60 Pollock on Torts, 15th ed., p.62, Adopted y McKardie, J. in Performing Rights Society ltd. v.

MtichellLtd., (1977) 106 ITR 11. 61Govind Prasad Sharma v. Board of Revenue And Ors., AIR (1965) MP 66. 62Citizens Life Assurance Company v. Brown, (1904) AC 423; Glasgow Corporation v. Lorimer, (1911) AC 209. 63Hillman’s Ariways, Ltd. v. Soceitte Anonme D’Editions Aeronautiques Internationals, (1934) 2 KB 356. 64Loth v. Columbia Theatre Co., (1905) 197 Mo. 328. Also in: Gayle v. Foundry Co., (1903) 177 Mo. 427; City

of Independence v. Slack, (1895) 134 Mo. 66 ; Barry v. St. Louis, (1852) 17 Mo. 121. 65Vivienne Harpwood, Modern tort law, Routledge Taylor and French Group, 7th Edition (2009).

https://en.wikipedia.org/wiki/Principal_(commercial_law)

https://en.wikipedia.org/wiki/Agent_(law)

https://openjurist.org/law-dictionary-ballentines/omnis-ratihabitio-retrotrahitur-et-mandato-priori-aequiparatur

https://openjurist.org/law-dictionary-ballentines/omnis-ratihabitio-retrotrahitur-et-mandato-priori-aequiparatur


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• Only such acts bind a principle by subsequent ratification as were done at the time on

his behalf.66

• The person ratifying the act must have full knowledge of its tortious character67.

• It must be shown that the person ratifying the act ratified it with full knowledge of it

being tortious, or it must be shown that, in ratifying and taking the benefit of the act, he

meant to take upon himself, without inquiry, the risk of any irregularity which might

have been committed, and to adopt the transaction right or wrong.68

(b) The Plaintiff submits that all of these essentials are satisfied in the given case. Quibbler TV

had impliedly given consent for the acts of MrSartaj Singh by airing the programme in the

television as a two hour prime story, by asking people to vote and by also trending a Twitter

campaign with the hash tag #wilsonthepervert.69 Where an independent contractor is employed

to do a particular thing, and in the ordinary course of events the omission to take proper

precautions with regard to the manner in which the work is to be done, is the occasion of a

person being injured, the principal is liable if he fails to see that proper precautions are taken70.

(c) The Plaintiff contends that the channel should have taken reasonable precautions71 to ensure

that the news that was given to them was true, before conducting shows and hosting a Twitter

campaign that defamed Mr Wilson. It has been satisfactorily established vide Issue 2 that the

statements made by Ms Rachel did not have even an iota of truth. Therefore, the Plaintiff

contends that since the channel has failed in its duty to take reasonable precautions before

publicizing a false statement and since they ratified the journalist’s act by airing the show, the

channel is vicariously liable72 for his acts in consonance with the doctrine of ratification.

A[2]. DOCTRINE OF RETAINED CONTROL:

66Shivnandan Sharma v. The Punjab National Bank Ltd, AIR (1955) SC 404. 67Floyd R. Mechem, The Effect of Ratification as between the Principal and the Other Party, Michigan Law

Review, Vol. 4, No. 4 (Feb., 1906).

68PER LOCH, J., in Rani Shamasundari Debi v. Dukhu Mandal, (1869) 2 Beng LR (ACJ) 227 (229); Girish

Chndra Das v. Gillanders Arbutnot& Co., (1869) 2 Beng LR (OCJ) 140. See Venkatasa Naikar v. T. Srinivasa

Chariyar, (1869) 4 MHC 410. Eastern Construction Co. v. National Trust Co., (1914) AC 197 (213): 110 LT 321. 69Paragraph 5, Moot Court Proposition, Page 1. 70Penny v. Wimbeldon, (1899) 2 Q.B. 72. Also in: Hughes v.Pef'cival, 8 A.C. 443, 52 L.J.Q.B. 719; Picka,-d v.

Smith, 10 C.B. (N.S.) 470; Botoef' v. Peate, I.Q.B.D. 321, 45 L.J.Q.B. 446; Dalton v. AUB, 6 A.C. 740, 50

L.J.Q.B. 689. 71Bihta Co-Operative Development Cane Marketing Union Ltd v.The Bank of Bihar &Ors., AIR 1967 SC 389. 72Various Claimants v. Barclays Bank plc (Dr Bates (deceased) and Barclays Group Litigation) (2017) EWHC

1929 (QB).


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(a) The general rule is that if the employer reserves for himself a right to control and actually

exercise such right, he cannot escape from liability. This was reinforced by the courts in a

catena of cases.73 If we compare it with the facts of the present case, it is explicit that Quibbler

Tv did have a control over the airing of the 2 hour long episode interviewed by the Defendant

No. 2 and they also had the control over the social media campaign #wilsonthepervert74. Thus

by actively participating in maligning the Plaintiff’s social image 75 , Quibbler TV should

definitely be held vicariously liable for defaming Mr Wilson76.

A[3]. PERSONAL INTERFERENCE BY QUIBBLER TV:

(a) The Plaintiff humbly submits that when the employer personally interferes and makes

himself a party to the act which occasssion the damage, he will be vicariously held liable to

compensate the victim.77

(b) If we compare the facts of the present case, we infer that Quibbler TV was personally

involved in the act which defamed Mr. Wilson. It was an active partner in airing the 2 hour

long Programme on its prime time and also actively took part in the twitter campaign started

to malign Mr. Wilson’s reputation called #wilsonthepervert78, especially when they had the

authority to stop airing the show or the Twitter campaign. Thus, just because Mr. Sartaj Singh

was employed on a contractual basis, they cannot excape from their vicariously lialibty towards

the Plaintiff, in the Plaintiff’s considered view.

B. SARTAJ IS A REPRESENTATIVE AGENT OF THE QUIBBLER TV:

(a) Although persons may be “independent contractors” in relation to the persons hiring them,

they may be acting as the hirers’ agents and become liable to 3rd parties under the doctrine of

apparent and ostensible agency. 79In relation to independent contractors, the notion of agency

could be used to create exceptions to the basic rule of no liability. Similarly, if a person were

held to be an agent, their status as servant or independent contractor would be irrelevant.80 A

73Performing Rights Society v. Mitchell, (1924) 1 KB 762; Burgess v. Gray, (1845) 1 CB 578; Union Steamship

Co. v. Claridge, (1894) AC 185; Immamuddin & Ors. v. Khatoon & Ors., AIR 1977 Raj 142. 74Paragraph 5, Moot Court Proposition, Page 1. 75Ram Jethmalani v. Subramaniam Swamy, AIR (2006) Delhi 300. 76L.Lakshmanan v. G.Jayapalan, Cr.MP.Nos.1 to 1/2006. 77Burgess v. Gray, (1845) 1 CB 578. 78Paragraph 4, Moot Court Proposition, Page 1. 79Nelson v. Polley, 1996 OK 142, 916 P.2d 1369, 1374 ( f.n. 23). 80 D Gardner and F McGlone, Outline of Torts (Butterworths, 2nd ed, 1998); F Trindade and P Cane, The Law of

Torts in Australia (Oxford University Press, 3rd ed, 1999); H Luntz and D Hambly, Torts: Cases and Commentary

(LexisNexis Butterworths, 5th ed, 2002).


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principal can be held liable for the wrongful act of an agent causing damage to a third party

when that act occurred while the agent was carrying out some activity as the principal's

authorised representative in a dealing with a third party81.

(b) Generally a person is not vicariously liable for another’s torts unless the other person is his

servant or the act was directly authorized82. However, a different circumstance will arise when

the function performed is that of representing the person for whom we are working. In that

case, there is vicarious liability because the person performing the function ‘does not act

independently, but as a representative of the company, which accordingly must be considered

as itself conducting the negotiations in his place.83 This principle of considering an independent

contractor as an representative agent was further affirmed in another case.84

(g) In the instant matter, it is distinct that Mr. Sartaj Singh was acting in the capacity of an

representative agent of Quibbler TV, and the channel still exercised an active control and

supervision over the activities of Mr. Sartaj, they had all the power to stop the airing of the

show and the Twitter campaign, which they failed to do; hence the channel is bound to be liable

for the acts of such representative agent, is the Plaintiff’s humble submission.

Thus, the Plaintiff humbly submits that Quibbler TV cannot take the defense of “master not

being liable for independent contractor’s act” when it has actively contributed to causing an

irreparable damage to the reputation and career of Mr Wilson.

ISSUE 4

4. WHETHER THE DAMAGES SOUGHT IS JUSTIFIABLE?

The Plaintiff herein, has sought damages to the tune of Rs. 100 crores which is justifiable in

the eyes of law as the primary object of damages is to compensate to the plaintiff the material

loss suffered by him, which includes in its ambit the case of defamation also.85

A. FACTORS TO BE CONSIDERED BEFORE GRANTING DAMAGES:

81 Hollis v. Vabu Pty Ltd, (2001) HCA 44. 82Short v. J W Henderson Ltd., (1946) 62 TLR 427. 83Colonial Mutual Life, (1931) 42 CLR 41 at 50. 84Sweeney v. Boylan Nominees Pvt Ltd., (2006) HCATrans (3rd march 2006) at 590. 85Manson v. Associated Newspapers, (1965) 2 All ER 954 (958).


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(a) Generally, heavy damages are called for when the person defamed enjoys a high stature in

the society. 86 Further, the nature of imputation of a crime 87 , immorality or unchastity;

imputation of one’s trade or business88 is viewed with immense seriousness by the Courts.

(c) It is evident that the injury to reputation is heavier when it is published on a media platform,

like a newspaper89 or a TV channel90 or a social media platform91, than when it is confined

only to a few individuals.92 It is palpable from the facts of the case that Ms Rachel made the

statement on Quibbler TV which was viewed by millions93, following which there was a talk

show and a Twitter campaign propagated by the channel94 and the reach of each one of these

platforms is huge. Further, the tweet can also be re-tweeted several times which initiates a new

cause of action every time.

(d) Further there were no mitigating circumstances in the present case 95.No apology was

rendered to Mr Wilson to mitigate the case and to reduce the damages awarded. Further When

a newspaper disseminates a defamatory matter with the deliberate intent of making profit by

way of increasing the circulation, it would be an aggravating circumstance, calling for the

award of exemplary damages.96 The same would apply for broadcasting TV program with

defamatory content inorder to increase the TRP rating of the channel. The unprovoked nature

of attack on the Plaintiff’s reputation, the fierceness of the Defendant’s language, despicable

nature of the imputation conveyed and the fact that the defamation was deliberate and malicious

and the defendant’s gross negligence acts as an aggravating circumstance in awarding

damages.97 The Plaintiff submits that all these limbs are present in the instant matter.

(b) Therefore, it is crystalline that all the aforementioned limbs are satiated in the present case.

The Plaintiff humbly submits that, in lieu of the above mentioned judicial pronouncements,

exemplary damages to the tune of Rs 100 crores should be awarded to Mr Wilson.

86Ley v. Hamilton, (1936) 153 LT 384. Also in: Youssoupoff v. MGM Pictures, (1934) 50 TLR 581. 87Roberts v. Daniel, (1888) 5 TLR 542. 88 Wilson v. United Counties Bank, (1920) AC 102. 89S. Bangarappa v. Ganesh Narayan Hegde & Anr., ILR 1984 KAR 278. 90Dr. M.K. Muneer v. State Of Kerala, Crl.MC.No. 1583 of 2005. 91Sheetal Bhat & Ors. v. Winner Raina & Anr., IA No. 01/2018. 92Parnell v. Walter, (1980) 24 QBD 441. 93Paragraph 4, Moot Court Proposition, Page 1. 94Paragraph 5, Moot Court Proposition, Page 1. 95Miss Kamalini Manmade v. Union Of India, (1967) 69 BOMLR 512. 96McCarey v. Associated Newspapers, (1964) 3 All ER 947 97Ogilive v. Punjab Akhbarat & Press Co, (1929) ILR 11 Lah 45.


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B. MENTAL AGONY SUFFERED BY WILSON:

(a) In every case of defamation, it is not just the monetary losses of the Plaintiff that needs to

be compensated; but also for the mental agony he suffers. 98 Psychologically speaking,

generally, people fear an imputation to reputation and honour, more than monetary losses99.

(b) Therefore, the Plaintiff humbly contends that Mr Wilson should not only be compensated

for his monetary losses but also for his mental sufferings. Mr Wilson is a perseverant hard

worker who has grown from the scratch. Publication of these false, defamatory statements by

the defendants100 has led to a huge loss, both monetarily and emotionally, to Mr Wilson which

brought down his stature in the society. People who viewed and considered Mr Wilson as a

role model would have felt disgusted after listening to this news, which was utterly false and

baseless. Thus, it the Plaintiff’s humble contention that he has to be compensated exemplarily.

C. BUSINESS LOSSES SUFFERED BY THE PLAINTIFF:

(a) The facts of the case clearly establish that Mr Wilson had suffered a heavy loss in his present

and future career owing to the false and defamatory statements published by the Defendants.101

The Indian judiciary believes not only in compensating for the present losses; but also for the

future losses.102 Therefore, the plaintiff should be awarded damages for the future losses that

he would suffer due to this defamation also.

D. CLAIM OF EXEMPLARY DAMAGES:-

(a) In awarding exemplary damages, the Court considers not what the plaintiff would like to

receive, but “what defendants ought to pay” because of their outrageous conduct103. Punitive

damages could be given if it was proved that publishers knew that the passages in the book

were libelous and could not could not be justified or at least deliberately shut their eyes to the

truth. 104 Punitive damages are awarded for imputing dishonesty to a substantial

98M. Jainoon v. M. Ammanulla Khan & 3 others, AIR (2000) Mad 381. Also in: H.C. Chandel v. Union of India

&Anr., 96 (2002) DLT 174. 99Michael Eysenck, Mind of a Man, The Complex Dexterity, Psychology News Daily,

https://www.sciencedaily.com/news/mind_brain/psychology/, Accessed on: 22/12/2018, 12: 39 HRS. 100Paragraph 4, Moot Court Proposition, Page 1. 101Paragraph 6, Moot Court Proposition, Page 1. 102Govind Yadav v. New India Insurance Co. Ltd., (2011) 10 SCC 683. 103Lewis v. Daily Telegraph, (1962) 2 All ER 698 (717) (CA). 104Cassell& Co. v. Broome, (1972) 1 All ER 801.


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businessman105, where the defendant’s conduct is actuated by malice 106 or when the defendant

acts in contumelious disregard of the plaintiff’s rights.107

The facts and circumstances of the above laid down precedents, on the basis of which

exemplary damages were awarded, is similar to the case at hand, hence it is submitted that Mr

Wilson’s claim of damages to the tune of Rs.100 crores is justifiable.

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:

• Hold that all the three Defendants are liable for defaming the Plaintiff.

• Direct the Defendants to make a public apology which should be aired on Quibbler TV.

105Lewis v. Daily Telegraph, (1962) 2 All ER 698 (717) (CA). 106 Cf. Australian Consolidated Press v. Uren, (1967) 3 All ER 523 (526) PC. 107Mayne on Damages, (1961), 12th edition, pp.196-197.


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• Award damages for the mental and monetary losses suffered to the tune of Rs. 100

crore.

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 Plaintiff 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 PLAINTIFF

dispute relating to defamation and character …p a g e | 3 2nd surana & surana and dr. m.s....

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