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2 ND SURANA & SURANA AND Dr. M. RAMAIAH NATIONAL TORT LAW MOOT COURT COMPETITION, 2019STATEMENT OF JURISDICTIONThe 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 H...

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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. MEMORANDUM ON BEHALF OF PLAINTIFF

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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:

MEMORANDUM ON BEHALF OF PLAINTIFF

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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?

MEMORANDUM ON BEHALF OF PLAINTIFF

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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. M oreover, 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. MEMORANDUM ON BEHALF OF PLAINTIFF

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SURANA & SURANA AND Dr. M.S. RAMAIAH NATIONAL TORT LAW MOOT COURT COMPETITION, 2019 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 TV 2 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

2

Paragraph 4, Moot Court Proposition, Page 1. 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 meaning 7, 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 4

Sim 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. 5 Tournier 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. 6 Paragraph 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. 9 PurushothamLal 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. 10 Sushil Kumar Gupta v. Jindal Charitable Trust, CM Nos. 2688/2017 & 2690/2017. 11 Paragraph 6, Moot Court Proposition, Page 1. 12 Ibid. 13 Paragraph 2, Moot Court Proposition, Page 1. 14 Rustom K. Karanjia&Anr.v. Krishnaraj M.D. Thackersey, AIR 1970 Bom 424. 15 Merriam- Webster Dictionary, since 1824. MEMORANDUM ON BEHALF OF PLAINTIFF

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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

16

Paragraph 4, Moot Court Proposition, Page 4. ArunJaitley v. ArvindKejriwal, CS(OS) 236/2017. 18 Paragraph 5, Moot Court Proposition, Page 1. 19 Duke 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. 20 Rustom 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. 21 Bromage v. Prosser, (1825) 4 B & C 247. 22 PandeySurendraNathSinha v. BageshwariPd, AIR (1961) Pat 164. Also in: Grant v. Torstar Corp, (2009) SCC 61. 23 Paragraph 7, Moot Court Proposition, Page 2. 24 Paragraph 4, Moot Court Proposition, Page 1. 25 Paragraph 3, Moot Court Proposition, Page 1. 26 Paragraph 21, Moot Court Proposition, Page 4. 17

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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 statement 27 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.

27

Supra Note 20. Also in: Sturt v. Blagg (1847) 10 QB 906. Roberts v. Bass, (2002) HCA 57. Also in: Barbaro v. Amalgamated Television Services Pvt Ltd, (1985) 1 NSWLR 30. 29 Paragraph 4, Moot Court Proposition, Page 1. 30 S. 354A, Indian Penal Code, 1860. (Criminal Law Amendment Act, 2013). 31 Paragraph 12, Moot Court Proposition, Page 2. 32 Paragraph 18, Moot Court Proposition, Page 3. 28

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E [2]. THERE IS NO “STALKING” IN THE PRESENT CASE: (a) Ms Rachel has also claimed that Mr Wilson stalked her 33 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

33

Paragraph 4, Moot Court Proposition, Page 1. S. 354D, Indian Penal Code, 1860.(Criminal Law Amendment Act, 2013). 35 Surendra Mishra v. State of Jharkhand , (2011) 3 SCC (Cri.) 232. Also in: State Of Rajasthan v. Shera Ram @ Vishnu Dutta, (2012) 1 SCC 602. 36 Paragraph 15, Moot Court Proposition, Page 3. 37 Jagmal Singh v. State of Uttar Pradesh, AIR (1991) SC 1928. Also in: ShriVasudeva Bank Ltd. v. Union of India, 1990 (48) ELT 214 Mad. 38 Sharma v. Srikrishna, AIR 1959 SC 395 (402). 34

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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

39

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

42

Salendandasi v. GajjalaMalla Reddy, AIR 2008 (NOC) 299 (A.P.). MEMORANDUM ON BEHALF OF PLAINTIFF

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fall within the umbrella of prot...