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2 ND SURANA & SURANA AND Dr. M. RAMAIAH NATIONAL TORT LAW MOOT COURT COMPETITION, 2019BEFORE THE HON’BLE HIGH COURT OF JUDICATURE AT DELHIDISPUTE RELATING TODEFAMATION AND CHARACTER ASSASINATIONO/S NO _____ OF 2018(Under Order VIII, Rule 1 r/w. S of Civil Procedure Code, 1908& S. 2, Delhi Hi...

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WS19D 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

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TABLE OF CONTENTS INDEX OF AUTHORITIES

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I. BOOKS II. LEXICONS III. STATUTES IV. WEBSITES LIST OF ABBREVIATIONS

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TABLE OF CASES

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STATEMENT OF JURISDICTION

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STATEMENT OF FACTS

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STATEMENT OF ISSUES

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SUMMARY OF ARGUMENTS

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ARGUMENTS ADVANCED

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ISSUE 1: WHETHER RACHEL IS LIABLE FOR DEFAMING WILSON? A. THE ACTIONS OF WILSON F ALLS UNDER THE PURVIEW OF HARASSMENT.

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

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

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

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

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B. THE ACTS OF MR. WILSON AMOUNTS TO STALKING. B [1] JUSTIFICATION OF TRUTH FOR PUBLIC GOOD

MEMORANDUM ON BEHALF OF DEFENDANT

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ISSUE 2 : WHETHER SARTAJ SINGH IS IMMUNE FROM HIS LIABLITY UNDER FREEDOM OF PRESS, SPEECH AND EXPRESSION?

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

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B. DEFENCE OF QUALIFIED PRIVILEGE.

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

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

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ISSUE 3: WHETHER QUIBBLER TV IS VICARIOUSLY LIABLE FOR SARTAJSINGH’S ACTS? A. VICARIOUS LIABILITY NOT APPLICABLE. B. EXCEPTIONS TO THE RULE OF INDEPENDENT CONTRACTOR NOT SATISFIED.

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B[1]. INHERENTLY D ANGEROUS ACTIVITY.

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B[2]. DOCTRINE OF CONTROL.

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C. EXEMPLARY D AMAGES NOT JUSTIFIED. PRAYER

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MEMORANDUM ON BEHALF OF DEFENDANT

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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.

MEMORANDUM ON BEHALF OF DEFENDANT

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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. MEMORANDUM ON BEHALF OF DEFENDANT

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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

MEMORANDUM ON BEHALF OF DEFENDANT

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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

MEMORANDUM ON BEHALF OF DEFENDANT

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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, MEMORANDUM ON BEHALF OF DEFENDANT

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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

MEMORANDUM ON BEHALF OF DEFENDANT

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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.

MEMORANDUM ON BEHALF OF DEFENDANT

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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

MEMORANDUM ON BEHALF OF DEFENDANT

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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?

MEMORANDUM ON BEHALF OF DEFENDANT

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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.

MEMORANDUM ON BEHALF OF DEFENDANT

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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 possess 1” 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 words 2. (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

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

MEMORANDUM ON BEHALF OF DEFENDANT

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workplace, especially has been determined an...