WS14P

IN THE
HONOURABLE HIGH COURT OF DELHI
AT DELHI

—IN THE MATTER OF—

WILSON........................................................................................................................PLAINTIFF
v.
RACHEL……............................................................................................................DEFENDANT
QUIBBLER TV (REPRESENTED BY, THE MANAGING DIRECTOR)
…………….........DEFENDANT
SARTAJ SINGH……………………………………………………….……..
…......DEFENDANT

CIVIL SUIT NO. XXX/2019

(SUIT FILED UNDER SECTIONS 9 AND 19 & Order 1 Rule 3 & 4 of Civil Procedure Code, 1908
read with the Chapter 2, Part A Rule 1 of Delhi High Court Rules.)

MEMORIAL ON BEHALF OF PLAINTIFF

 TABLE OF CONTENTS

INDEX OF AUTHORITIES....................................................................................................iii

STATEMENT OF JURISDICTION........................................................................................vii

STATEMENT OF FACTS.....................................................................................................viii

STATEMENT OF ISSUES......................................................................................................ix

SUMMARY OF ARGUMENTS...............................................................................................x

ARGUMENTS ADVANCED...................................................................................................1

1. The acts committed by the defendant constitute defamation..........................................1

A. The acts of defendant constitute defamation...............................................................1

B. The defendants cannot take the defence of privilege..................................................2

C. The defendants cannot take the defence truth ............................................................3

2. The damages claimed by Wilson are reasonable............................................................5

3. Defendant cannot avail the defence of freedom of speech.............................................7

A. Defamation restricts the exercise of right to speech and expression...........................7

i. Right to freedom of speech and expression is not an absolute right...........................7

B. The defence of fair comment does not hold here........................................................8

i. Public Interest is absent...............................................................................................9

ii. The defamatory statement is an assertion of fact, rather than a comment..................9

iii. The comment should be based on truth.......................................................................9

iv. The comment must be fair, pertinent.........................................................................10

ii
 C. Defence of Qualified Privilege is inapplicable here..................................................10

4. Quibbler TV can be held vicariously liable for the acts of sartaj Singh.......................10

A. Sartaj Singh is an employee of Quibbler TV and defence that he is employed on a

contractual basis cannot be taken......................................................................................11

B. Relation between Sartaj and Quibbler TV is such to give rise to the vicarious

liability..............................................................................................................................13

C. The duty transferred to Sartaj Singh was a non- delegable duty...............................14

D. Plaintiff can sue Quibbler TV even if it Quibbler TV had no knowledge of Sartaj

Singh's activities...............................................................................................................15

iii
 INDEX OF AUTHORITIES

Articles

McKendrick, Ewan. “Vicarious Liability and Independent Contractors: A Re-

Examination.” The Modern Law Review, vol. 53, no. 6, 1990, pp. 770–78........................11

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

2013........................................................................................................................................4

Books

HANDBOOK On Sexual Harassment of Women at Workplace, Ministry of Women and

Child Development.................................................................................................................5

Cases

‘How Twitter Works’, issued with Monroe v Hopkins, [2017] EWHC 433 (QB)....................8

Bell v. Stone, (1798) 1 B & P 331.............................................................................................1

Casidy v. ministry of health [1951] 2 K.B. 343.......................................................................11

Catholic Child Welfare Society v.Institute of the Brothers of the Cristian Schools [2012]

UKSC 56..............................................................................................................................13

Chiropractic Association v Singh [2011] 1 WLR 133.............................................................10

Citizen’s Life Assce. Co. v. Brown, (1904) AC 423...............................................................15

Clement v. Chivis, (1829) 9 B & C 172.....................................................................................1

Collins v. Hertfordshire County Council, (1947) KB 598, 615...............................................12

Cox v Feeney, (1863) 176 ER 445.............................................................................................9

Cox v. Ministry of Justice [2014] EWCA Civ 132..................................................................13

D&F Estates Ltd. V. Church Commissioner [1989] A.C. 177................................................14

D. & L. Caterers Ltd. v. D’Ajou, (1945) KB 364......................................................................1

iv
Dharangadhra Chemicals Works Ltd. v. State of Saurashtra, AIR 1957 SC 264....................12

Dick Anagnost & Anr. v. The Mortgage Specialists, Inc. & Anr., 2017 N.H. 0311 (2018)......5

Digby v Financial News Ltd, [1907] 1 KB 502.......................................................................10

Dina Nath v. Sayyad Habib, ILR (1929) IO Lah 816..............................................................15

Gawker Media, LLC v. Bollea, 129 So.3d 1196 (Fla. 2d DCA 2014)......................................5

Hamilton v Clifford, [2004] EWHC 1542 (QB)......................................................................10

Harbhajan Singh v State of Punjab, 1961 Cri LJ 710..............................................................10

Jameel v. Wall Street Journal, (2006) 4 All ER 1279 (H.L.).....................................................1

Jameel v. Wall Street Journal, 4 All ER 356..............................................................................2

John v. MGN Ltd., (1996) 2 All ER 35.....................................................................................5

Kelly v Tinling, (1865) LR 1 QB 699........................................................................................9

Kemsley v Foot, 1952 1 All ER 501..........................................................................................9

Lachaux v Independent Print Ltd[2017] EWCA Civ 1334 (England)......................................8

Lajpat Rai v. The Englishman, (1909) ILR 36 Cal 883............................................................6

Lewis v Levy, 635 F.2d 960 (2d Cir. 1980)...............................................................................9

London Artists Ltd. V Littler, [1969] 2 QB 375........................................................................9

Makhanlal v. Panchamal, (1934) 31 NLR 27............................................................................6

Massey v. Crown Life Insurance Co [1978] WLR 676...........................................................11

Monroe v Hopkins, [2017] EWHC 433 (QB)............................................................................8

MSM Sharma v Sri Krishna Sinha, AIR 1959 SC 395..............................................................7

Mushtaq Ahmad Mir v. Akash Amin Bhatt, AIR 2010 J&K 11................................................1

O. Ramalingam V. Daily Thanti, AIR 1975 Mad 309.............................................................15

Ramesh Chander v. State, AIR 1966 Punj 93..........................................................................15

Reynolds v. Times Newspapers Ltd., (2001) 2 A.C. 127..........................................................2

Sakal Papers v Union of India, 1962 (3) SCR 842....................................................................7

v
Seagram India Pvt. Ltd v. VipinSohanlal Sharma, 2010 170 DLT 747.....................................1

Silver Jubilee Tailoring House V. Chief Inspector of Shops and Establishments, (1974) 3

SCC 498 (507)......................................................................................................................13

Slipper v. British broadcasting Corp. , (1991) 1 QB 283.........................................................12

Sodhi Gurbachan singh koshan v. babu ram, AIR 1969 Punj 201...........................................15

Spiller v Joseph [2011] 1 AC 852, 105....................................................................................10

Stevenson, Jorden and Harrison Ltd v Macdonald and Evans [1952] 1 T.L.R. 101 at 111.....11

Stopes v Sutherland, 39 TLR 677 (1923).................................................................................10

Strauss v Francis, (1866) 1 LR 379 QBD..................................................................................9

Subhash Chandra Bose v R. Knight & Sons, AIR 1929 Cal 69...............................................10

T G Goswami v the State, AIR 1952 Pepsu 165........................................................................9

Theedom v Nourish Training Centre, [2015] EWHC 3769 (QB)..............................................8

Thompson v Shackell, M & M 187, 22 ECL 286......................................................................9

Thorton v Telegraph Media Group, 2010 [EWHC] 1414 (QB).................................................8

Times v Sullivan, 376 U.S. 254 (1964)......................................................................................2

Toogood v. Spyring, (1834) 1 C.M. & R. 181...........................................................................2

Tse Wai Chun v Cheng [2000] HKCFA 86,20........................................................................10

Union Benefit Guarantee Company v. ThakorlalThakor, (1935) 37 Bom LR 1033.................1

Viasystems Ltd v. Thermal Transfers (Northern) Ltd, [2006] Q.B. 510.................................13

Vishaka v. State of Rajasthan, AIR 1997 SC 3011....................................................................4

Wason v Walter, (1868) LR 4 QB 73........................................................................................9

Woodland v. Essex CC [2013] 3 W.L.R. 1227........................................................................14

Constitutional Provisions

Constitution of India, 1950, Art. 19(1)......................................................................................7

Other Authorities

vi
Art. 10(2) of ECHR, https://www.echr.coe.int/Documents/Convention_ENG.pdf...................7

Collins Dictionary, available at https://www.collinsdictionary.com/........................................8

Constitutional Assembly Debates, December 2, 1948, speech by Dr. B. R. Ambedkar,

available at https://parliamentofindia.nic.in...........................................................................7

European Convention of Human Rights (ECHR),

https://www.echr.coe.int/Documents/Convention_ENG.pdf.................................................7

H.C. Black, Black’s Law Dictionary, 4th Edition.......................................................................1

Statutes

Indian Penal Code (1860)...........................................................................................................1

Treatises

Durga Das Basu, Law of the Press, Fourth Edition, 2002.......................................................15

Ratanlal&Dhirajlal, The Law of Torts, (26th ed 2010)...............................................................1

Winfield & Jolowicz, Tort, (19th Ed. 2015)...............................................................................3

vii
 STATEMENT OF JURISDICTION

The plaintiff most humbly submits to the jurisdiction of this Hon’ble High Court of Delhi.

Civil suit No. XXX/2019 is filed under Sections 9 and 19 & Order 1 rule 3 & 4 of the Code

of Civil Procedure, 1908 read with the Chapter 2 Part A Rule 1 of Delhi High Court Rules

2018.

All of which is urged in detail in the written submission and is submitted most respectfully.

viii
 STATEMENT OF FACTS

The plaintiff, Wilson worked as the head of a department at Wade Enterprises where Rachel

was hired. Wilson had feelings for Rachel but did not act on them to maintain professional

integrity. After an office party, Wilson dropped her at her residence when she asked him

inside. Wilson politely declined after which she kissed him before leaving. Wilson got

excited as his feelings had been reciprocated and he proposed Rachel the next day at the

office. Rachel clarified her stance on the relationship and turned down Wilson. Their

professional relationship had deteriorated and to improve the same, Wilson attempted

contacting her which he was unable to do and forced to talk to her outside of work. Wilson

fearing that this would affect their work asked for their departments to be changed but the

management transferred Rachel sensing that Wilson would be more useful at securities and

investment division than Rachel. Rachel then went on to file a sexual harassment case against

Wilson in the office. However, Wilson not wanting to escalate things further left the company

to establish his own company, Essex Corporation, before the internal committee could decide

the case. After nearly six years Rachel gave an interview on Quibbler TV wherein, she

claimed that Wilson stalked and harassed her during the me-too movement. The interview

was even more momentous due to the fact that Umbrella Corporation was about to take over

Essex Corporation which would have made Wilson a billionaire. The interview was aired

and was followed up by a two-hour primetime story by news anchor Sartaj Singh. The TV

channel also conducted a vote, a debate and initiated a twitter campaign “Wilsonthepervert”.

The topic of the debate was “Whether Wilson should be allowed to get away with harassing

women?” It was followed by another debate on whether companies should strengthen their

policies and not conduct business with people accused of harassment. In light of such events

Umbrella Corporation refused to conduct business with Essex Corporation.

ix
 STATEMENT OF ISSUES

1. WHETHER THE ACTS COMMITTED BY DEFENDANTS CONSTITUTE

DEFAMATION?

2. WHETHER THE DAMAGES CLAIMED BY WILSON ARE REASONABLE?

3. WHETHER SARTAJ SINGH AND QUIBBLER TV CAN BE CHARGED WITH

DEFAMATION?

4. WHETHER QUIBBLER TV IS VICARIOUSLY LIABLE FOR ACTIONS OF

SARTAJ SINGH?

x
 SUMMARY OF ARGUMENTS

1. THE ACTS OF THE DEFENDANTS CONSTITUTE DEFAMATION.

The acts of the defendants constitute defamation. The acts meet the criteria of defamation.

Moreover, the defendants cannot take the defence of privilege, due to the fact that the

defendants fail the Reynold’s and Jamaal’s test. In addition, the defendants cannot take the

defence of truth due to the fact that Wilson did not indulge in stalking and harassment.

2. THE DAMAGES CLAIMED BY WILSON ARE REASONABLE.

The damages claimed by Wilson are reasonable. The damages claimed by Wilson are only

compensatory in nature although the defendants are liable for exemplary damages as well.

3. SARTAJ SINGH AND QUIBBLER TV CANNOT BE CHARGED WITH

DEFAMATION.

Right to freedom of speech and expression is not an absolute right. It is restricted on the

ground of defamation. In the present case all the ingredients of defamation are satisfied.

Further, these essentials are also applicable to tweets. Defence of fair comment is

inapplicable here owing to absence of public interest and unfair and false factual allegations.

Apart from that defence of qualified privilege does not hold.

4. QUIBBLER TV IS NOT VICARIOUSLY LIABLE FOR THE ACTS OF SARTAJ

SINGH.

Sartaj Singh is an employee of Quibbler TV and the defence that he was employed on

contractual basis cannot be taken. As integral part of business test is applicable also

Quibbler TV has obligation for the negligent actions of Sartaj Singh furthermore, control

test is also applicable. Relation between Sartaj Singh and Quibbler TV is such to give rise

to vicarious liability also the duty transferred to Sartaj Singh was a non-delegable duty.
xi
 ARGUMENTS ADVANCED

1. THE ACTS COMMITTED BY THE DEFENDANT CONSTITUTE DEFAMATION.

Defamation is defined as the taking from one's reputation by injuring 'a person's character,

fame, or reputation by false and malicious statements’. 1 To suggest that a person is a

“criminal”2, “villain”3 or a “man of gross misconduct”4 is defamatory. The defendants

committed defamation [A]. The defendants cannot take the defence of privilege and freedom

of media [B]. The defendants cannot take the defence of truth [C].

A. THE ACTS OF DEFENDANT CONSTITUTE DEFAMATION.

There are three constituents of defamation; exposing the person to hatred, contempt or

ridicule, tending to injure the person in profession and trade and causing him to be shunned

by his neighbours.5 When personal character of an officer of a corporation is damaged then

damages can be asked for6 especially when a criminal charge is assigned to it 7. Special

damages are awarded without proof, when a corporation’s business practices are unfairly

criticised.8 When their officers are defamed then proof of special damages is required.9

The three constituents of defamation hold true in the given fact matrix as the person was

exposed to hatred and contempt, the business of Wilson suffered as Umbrella Corporation

refused to do business with Wilson’s business and was shunned10. Rachel made an allegation

of stalking and harassment which are punishable under the Indian Penal Code,1860 (“IPC”)11

against Wilson on Quibbler TV and made him a criminal in the eyes of the viewers. 12 In the
1
H.C. Black, Black’s Law Dictionary, 4th Edition.
2
Mushtaq Ahmad Mir v. Akash Amin Bhatt, AIR 2010 J&K 11.
3
Bell v. Stone, (1798) 1 B & P 331.
4
Clement v. Chivis, (1829) 9 B & C 172.
5
Ratanlal&Dhirajlal, The Law of Torts, (26th ed 2010).
6
Seagram India Pvt. Ltd v. VipinSohanlal Sharma, 2010 170 DLT 747.
7
Jameel v. Wall Street Journal, (2006) 4 All ER 1279 (H.L.).
8
Union Benefit Guarantee Company v. ThakorlalThakor, (1935) 37 Bom LR 1033.
9
D. & L. Caterers Ltd. v. D’Ajou, (1945) KB 364.
10
Proposition, ¶6.
11
Indian Penal Code (1860).
12
Proposition, ¶4.

1
given fact matrix, the corporation Essex lost on investment from the Umbrella corporation

due to the defamation and hence damages should be payable as it made Umbrella corporation

less willing to work with it. 13 Further, if the media made the comments knowing that they are

false, or with reckless disregard to the truth, this proves malice, and the plaintiff qualifies for

exemplary damages14. Here, in the guise of a question, the channel made a false, malicious

remark that asserted Wilson to be a harasser. The intent behind this was to leverage the

position and to gain ratings. Quibbler TV being a national level news channel15 had extensive

coverage. Therefore, we can conclude that defamation against Wilson has occurred.

B. THE DEFENDANTS CANNOT TAKE THE DEFENCE OF PRIVILEGE

A privilege is a benefit accorded to a person by law which others are not privy to. 16 Common

Law provides qualified privilege to the media to publish news 17. The test for availing the

defence of privilege was laid down by Lord Nicholls in Reynolds v. Times Newspapers Ltd. 18

The given test has been upheld by the Hon’ble Supreme Court of India. 19 The test is

commonly known as the ‘Reynold’s Test’, and it sets down various parameters and their

cumulative effect is then taken into consideration. Post which the Jameel case 20, a three tier

test was adopted :-1.Whether the subject matter analysed in its entirety, is of public interest?

2. If so, then is the inclusion of the defamatory statement necessary (real contribution)? 3. If

so, whether responsible and fair steps were taken to gather and publish the information?

13
Proposition, ¶6.
14
Times v Sullivan, 376 U.S. 254 (1964).
15
Clarification to the moot proposition, No.11.
16
Supra note 1.
17
Toogood v. Spyring, (1834) 1 C.M. & R. 181.
18
Reynolds v. Times Newspapers Ltd., (2001) 2 A.C. 127.
19
Raj Gopal v State of Tamil Nadu, AIR 1995 SC 264.
20
Jameel v. Wall Street Journal, 4 All ER 356.

2
The allegations made by the defendants were serious in nature (calling a person

“pervert”21and a criminal22) and no concrete steps were taken to verify the allegations.

Moreover, no comment was sought from the Wilson and his side of the story was not aired

which made the broadcast biased. In addition, the tone of the actions (the subject of the

debate23 etc.) was such that it declared Wilson as a criminal 24 Moreover, a newspaper can

raise queries or call for an investigation without pursuing allegations as facts. Significantly,

the circumstance and the timing of the actions25 also needs to be taken into consideration as

there was a possible takeover of Wilson’s company and there existed a possibility of him

becoming a billionaire.26 Additionally, the twitter post was published and the question cum

factual allegation was voiced recklessly without a responsible check on it. Thus, it can be

concluded that the defendants cannot take the defence of privilege.

C. THE DEFENDANTS CANNOT TAKE THE DEFENCE TRUTH .

Truth or justification is a possible defence to civil defamation 27. However, in the given fact

matrix it cannot be used as a defence because Wilson did not commit stalking [i] and Wilson

did not commit harassment [ii].

i. Wilson did not commit stalking.

Stalking is defined as and contacting, or attempting to contact such woman or following a

woman to initiate a personal relationship despite a clear indication of disinterest by such

woman 28. There are a few exceptions to the above, for instance, if in particular circumstances

21
Proposition, ¶5.
22
Proposition, ¶6.
23
Proposition, ¶5.
24
Proposition, ¶4.
25
Winfield & Jolowicz, Tort, (19th Ed. 2015).
26
Proposition, ¶2.
27
Supra note 25.
28
Supra note 11.

3
such conduct is reasonable and justified.29 There is a defence to stalking which is

reasonability and justification.30

There was no clear indication by Rachel that she did not want to interact with Wilson given

that they were co-workers. When Rachel explicitly objected to Wilson’s reconciliation

efforts, he stopped attempting to contact Rachel. The actions of Wilson were reasonable and

justified as all he wanted to do was clarify his intentions. Moreover, it was Rachel who had in

fact first kissed Wilson and he reacted reasonably to the act of Rachel in being willing to

clarify his intentions to avoid awkwardness at the workplace. 31 Therefore, it can be concluded

that Wilson did not stalk Rachel.

ii. Wilson did not commit sexual harassment.

Sexual harassment is defined as following by the Hon’ble Supreme Court 32 and the Sexual

Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

(“SHA”)33; (i) physical contact and advances, (ii) demand or request for sexual favours, (iii)

making sexually coloured remarks, (iv) showing pornography, or (v) any other unwelcome

physical, verbal or non-verbal conduct of a sexual nature.34

The following circumstances also fall under sexual harassment: implied or explicit promise of

preferential treatment in employment; implied or explicit threat of detrimental treatment in

employment; implied or explicit threat about present or future employment status;

interference with work or creating an intimidating or offensive or hostile work environment;

or humiliating treatment likely to affect the lady employee’s health or safety.35 When acts are

reciprocal in nature one cannot claim sexual harassment.36

29
Id.
30
Supra note 11.
31
Proposition, ¶12.
32
Vishaka v. State of Rajasthan, AIR 1997 SC 3011.
33
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
34
Section 2(n) Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
35
Section 3(2) Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
36
HANDBOOK On Sexual Harassment of Women at Workplace, Ministry of Women and Child Development.

4
Wilson made no physical advances towards Wilson in fact Rachel herself made physical

advances towards Wilson which led to plaintiff’s response37. Moreover, Wilson did not ask

for any sexual favours, show pornography or make sexually coloured remarks at Rachel.

Firstly, Wilson made no promises or threats, implied or explicit, of either preferential or

detrimental treatment to Rachel. Secondly, Wilson did not threaten Rachel explicitly or

impliedly that her future employment status might be affected. Thirdly, there was no

interference with her work by Wilson. Moreover, Wilson himself asked for his department to

be shifted, which presented his bona fide intentions 38. In addition, it was humiliating for

Wilson to be rejected by Rachel in their workplace despite her kissing Wilson the previous

night.39 Thus, it can be concluded that Wilson did not sexually harass Rachel.

2. THE DAMAGES CLAIMED BY WILSON ARE REASONABLE.

While providing compensatory damages certain principles have to be considered. 40 The sum

should compensate the victim for the loss occurred, distress and humiliation. The nature of

the libel too impacts the amount of damages as graver the libel effecting claimant’s personal

integrity and professional reputation, graver would be the damages.41 The amount of damages

asked for are justified as well as it is the amount of loss borne by Wilson. In cases like

Gawker Media, LLC42 v. Bollea and Gill v.Anagnost, Crews and Grenier43, damages worth

rupees 818.5 crores and rupees 2000 crores were paid by the defendants. Damages can be

mitigated if the defendants apologise, the claimant has a clean image, malice in statement44.

In the given fact matrix, the defamation caused by the defendants has caused massive injury

to the plaintiff. The plaintiff stood to be the youngest billionaire of the nation 45. However, the
37
Proposition, ¶12.
38
Proposition, ¶17.
39
Proposition, ¶12.
40
John v. MGN Ltd., (1996) 2 All ER 35.
41
Id.
42
Gawker Media, LLC v. Bollea, 129 So.3d 1196 (Fla. 2d DCA 2014).
43
Dick Anagnost & Anr. v. The Mortgage Specialists, Inc. & Anr., 2017 N.H. 0311 (2018).
44
Supra note 5.
45
Proposition, ¶12.

5
defamation caused by the defendants made the deal between Essex corporation and Umbrella

corporation unviable46. The debate aired on Quibbler TV actually persuaded Umbrella

corporation to not do business with the first defendant’s company 47. This resulted in damages

to Wilson which he has claimed as compensatory damages. Moreover, the defendants alleged

criminal behaviour by the claimant which greatly impacted his personal integrity and

professional reputation48. Umbrella Corporation in fact rejected a deal with Essex corporation

on the ground that a deal with them would bring them bad repute.49

The amount of damages asked for are reasonable and are compensatory in nature. Further, no

exemplary damages have been asked for even though the defendants would be wholly liable

to pay the same. This is due to the fact that the defendants have not retracted their

statements50 and have not apologised for the same and have persisted with plea of

justification51. There can also be no mitigation of damages as there has been an absence of

apology, malice, clean image of the plaintiff. Hence damages claimed by Wilson are

reasonable.

3. THE DEFENDANT CANNOT AVAIL THE DEFENCE OF FREEDOM OF SPEECH.

Right to freedom of speech and expression is restricted on certain grounds under Art.19 (2)

[A]. Defence of fair comment does not hold here [B]. Further, defence of qualified privilege

is inapplicable here [C].

A. DEFAMATION RESTRICTS THE EXERCISE OF RIGHT TO SPEECH AND EXPRESSION.

The Constitution of India,52 guarantees freedom of speech and expression. However, this right

is subject to restrictions mentioned under Article 19 (2). The right to freedom of free speech

46
Proposition, ¶6.
47
Proposition, ¶5.
48
Proposition, ¶4.
49
Proposition, ¶6.
50
Lajpat Rai v. The Englishman, (1909) ILR 36 Cal 883.
51
Makhanlal v. Panchamal, (1934) 31 NLR 27.
52
Constitution of India, 1950, Art. 19(1).

6
and expression is restricted on the ground of defamation (i). The right to receive information

of the citizens is violated (ii).

i. Right to freedom of speech and expression is not an absolute right.

The defendants claim their right under Art19 (1) (a), 53 however, in cases of defamation this

right is not protected.54 Although freedom of press ensues from the freedom of free speech

and expression,55 nevertheless the liberty of the press in India stands on no higher footing

than the freedom of speech and expression of a citizen, implying that no privilege attaches to

the Press as such.56 This means that press simply exercises its individual right of expression. 57

Moreover, the European Convention of Human Rights, hereinafter, (ECHR) also provides

right to freedom of expression under Art. 10,58 but necessitates the freedom to be restricted.59

The Indian Constitution60 also restricts freedom of speech and expression on ground on

defamation.

ii. The ingredients of defamation have been met here.61

iii. The ingredients of defamation are applicable to a tweet as well (twible).

The “serious harm” test under the Act, can be applied to tweets 62, after determining- (i) what

meanings were borne by the tweets; (ii) whether those meanings had defamatory tendency;

and (iii) whether it was proved that the serious harm requirement was met. The word

‘pervert’63 signifies to a person whose sexual behaviour is immoral or unacceptable. Here, the

published statement “Wilsonthepervert”64 explicitly refers to the sexual conduct of the

53
Proposition, ¶ 8.
54
Supra note 52.
55
Sakal Papers v Union of India, 1962 (3) SCR 842.
56
MSM Sharma v Sri Krishna Sinha, AIR 1959 SC 395.
57
Constitutional Assembly Debates, December 2, 1948, speech by Dr. B. R. Ambedkar, available at
https://parliamentofindia.nic.in.
58
European Convention of Human Rights (ECHR), https://www.echr.coe.int/Documents/Convention_ENG.pdf.
59
Art. 10(2) of ECHR, https://www.echr.coe.int/Documents/Convention_ENG.pdf.
60
Supra note 52.
61
Supra at 1.A.
62
Monroe v Hopkins, [2017] EWHC 433 (QB).
63
Collins Dictionary, available at https://www.collinsdictionary.com/.
64
Proposition, ¶ 4.

7
claimant and is defamation per se65. Public tweets are also accessible to non users of twitter, 66

thus, if not more these have an equal coverage.

The serious harm test replaced the substantial harm test,67 and raised the threshold to prove

serious financial loss to business.68 Owing to the accusations levied by Sartaj Singh and

Quibbler TV, Umbrella Co. called off the deal69 that did cost billions to Wilson.

Here, the phrase published by the channel on twitter, constitutes libel. Damage is presumed in

cases of libel70. Hence, this tweet qualifies as defamation per se.

D. THE DEFENCE OF FAIR COMMENT DOES NOT HOLD HERE.

The following essentials must be met to successfully raise the defence of fair comment- the

matter commented upon must be that of public interest (i). The comment must be based on

facts(ii). The comments must be based on truth(iii). The comment must be fair (iv).

I. PUBLIC INTEREST IS ABSENT.

Matters of public interest include affairs of the state, 71 the administration of justice,72 public

institutions and local authorities,73 ecclesiastical matters,74 books,75 pictures,76works of arts,

theatres, concerts and public entertainment. 77 In London Artists v Littler78, Lord Denning

emphasized that the test is not about public’s legitimate concern but is rather about public’s

legitimate interest.

65
Theedom v Nourish Training Centre, [2015] EWHC 3769 (QB).
66
‘How Twitter Works’, issued with Monroe v Hopkins, [2017] EWHC 433 (QB).
67
Thorton v Telegraph Media Group, 2010 [EWHC] 1414 (QB).
68
Lachaux v Independent Print Ltd[2017] EWCA Civ 1334 (England); Supra note 11.
69
Proposition, ¶ 6.
70
Supra note 25.
71
Wason v Walter, (1868) LR 4 QB 73.
72
Lewis v Levy, 635 F.2d 960 (2d Cir. 1980).
73
Cox v Feeney, (1863) 176 ER 445.
74
Kelly v Tinling, (1865) LR 1 QB 699.
75
Strauss v Francis, (1866) 1 LR 379 QBD.
76
Thompson v Shackell, M & M 187, 22 ECL 286.
77
London Artists Ltd. V Littler, [1969] 2 QB 375.
78
Id.

8
This implies, that what is the public interest is more relevant than what ought to be the public

interest. The allegation of sexual harassment does not fall in any of these fields, and is rather

sensationalised to gain popularity. Thus, public interest is absent.

II. THE DEFAMATORY STATEMENT IS AN ASSERTION OF FACT, RATHER THAN A

COMMENT.

This defence only protects opinions and not defamatory allegations of facts.79. If the comment

claims bad conduct, but does not delineate upon the conduct itself, it is not protected by fair

comment.80

A comment is usually, accompanied by words such as, it seems like, it appears to be,

therefore, it is apparent that etc, however out here, the tweet “Wilsonthepervert” is a factual

allegation.

III. THE COMMENT SHOULD BE BASED ON TRUTH.

The truth of the facts upon which the comment is structured must be clear from the

publication.81 Only suspicion of guilt, subject to proof cannot constitute comment.82

In the present case, the substantial truth of the facts presented by Rachel should have been

established.83 There is absence of any clear verifiability of facts84.

Here, Wilson resigned85 before the inquiry committee could adjudge the authenticity of the

charges. Hence, this condition does not hold here.

IV. THE COMMENT MUST BE FAIR, PERTINENT.

79
T G Goswami v the State, AIR 1952 Pepsu 165.
80
Kemsley v Foot, 1952 1 All ER 501.
81
Subhash Chandra Bose v R. Knight & Sons, AIR 1929 Cal 69.
82
Hamilton v Clifford, [2004] EWHC 1542 (QB).
83
Digby v Financial News Ltd, [1907] 1 KB 502.
84
Chiropractic Association v Singh [2011] 1 WLR 133.
85
Proposition ¶ 19.

9
 First, the comment must qualify the objective test86, wherein any man honestly is capable of

possessing the same opinion on the basis of the facts. However, obstinate his views are. 87

Secondly, the comments must be made in good faith, untainted by malice.88

This requisite is absent in the case as the channel and the reporter attempted to publish this

matter immediately just after a few hours of the interview and, just a day before the

acquisition meeting89, to purposefully deprive him of this opportunity. Hence, the comments

made are not fair, and are rather male fide. Thus, the statements made by Sartaj Singh and

Quibbler TV, will not be protected by defence of fair comment.

E. DEFENCE OF QUALIFIED PRIVILEGE IS INAPPLICABLE HERE.90

4. QUIBBLER TV CAN BE HELD VICARIOUSLY LIABLE FOR THE ACTS OF SARTAJ SINGH.

Sartaj Singh defamed Wilson on his prime-time story by saying that he harassed a woman. 91

Quibbler TV is vicariously liable for the tort committed by Sartaj Singh, as Sartaj Singh is an

employee of Quibbler TV and defence that he is employed on contractual basis cannot be

taken [A]. Relationship between Sartaj Singh and Quibbler TV is such so as to give rise to

vicarious liability [B]. Also, the duty transferred to Sartaj Singh was a non-delegable duty

[C]. Lastly, Wilson can sue Quibbler TV even if Quibbler TV had no knowledge of the Sartaj

Singh's activities [D].

86
Stopes v Sutherland, 39 TLR 677 (1923).
87
Tse Wai Chun v Cheng [2000] HKCFA 86,20; Spiller v Joseph [2011] 1 AC 852, 105.
88
Harbhajan Singh v State of Punjab, 1961 Cri LJ 710.
89
General Clarification to the proposition, No. 6.
90
Supra at 1.B.
91
Proposition, ¶ 5.

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 A. SARTAJ SINGH IS AN EMPLOYEE OF QUIBBLER TV AND DEFENCE THAT HE IS

EMPLOYED ON A CONTRACTUAL BASIS CANNOT BE TAKEN.

In vicarious liability employer is liable employer is liable for the acts of employee who are

engaged under a contract of service and not for the acts of independent contractor who are

employed under a contract for service.92 Independent contractors are outside the purview of

vicarious liability.93 It is important to distinguish between contracts of service and contracts

for service because the liability of the employer arises in the case of contract of service.94 So

to distinguish we can apply integral part of business test [i]. Also, there is an obligation of

Quibbler TV towards the wrongful acts of Sartaj Singh as his acts were within the course of

employment [ii]. Further, control test is applicable in the present case [iii].

i. Integral part of business test is applicable in the present case.

Under a contract of service, a person is employed as a part of business and his work is an

essential part of the business. Whereas, in a contract for service work done by the employee

although done for the business but is only an accessory to it.95 Further, reporters in the staff of

a newspaper are employed under a contract of service.96

In the present case, the business is of news telecasting and it can be observed that for a news

channel a two hour prime time show is an integral part of business and not accessory to it. In

conclusion ‘the integral part of business test’ can be applied in the present case.

92
McKendrick, Ewan. “Vicarious Liability and Independent Contractors: A Re-Examination.” The Modern Law
Review, vol. 53, no. 6, 1990, pp. 770–784
93
Id.
94
Supra note 25.
95
Casidy v. ministry of health [1951] 2 K.B. 343 ; Dharangadhra Chemical Works Ltd. V. State of
Saurashtra, AIR 1957 SC 264
96
Id.; Stevenson, Jorden and Harrison Ltd v Macdonald and Evans [1952] 1 T.L.R. 101 at 111 ; Massey v.
Crown Life Insurance Co [1978] WLR 676.

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 iv. Obligation of Quibbler TV towards negligence of Sartaj Singh

To determine the liability of the negligent act, the enquiry should concentrate upon the

questions that whose responsibility was to prevent the act or who were theoretically obliged

to give orders as how the work should be done. 97 TV channel can be held liable for defaming

publications done in one of its programmes. 98 For instance, in the case of British

Broadcasting Company (BBC), the BBC was held liable for defaming a retired police officer

in one of its programmes.99

In this factual scenario focus of our inquiry is that who was theoretically liable for the wrong

of defamation done by Sartaj Singh. According to BBC case TV channel is liable to pay

compensation for defaming publication so Quibbler TV should insure that Sartaj Singh does

not commit a tort in the fulfillment of his obligations. Hence, Quibbler TV shall be held liable

for the acts of Sartaj Singh that have defamed Wilson.

v. Control test is applicable in the present case

Control test means that whether under the employer and employee arrangement the employer

has right to control the manner and supervise the work done by the employee. 100 If we

consider of applying the control test it can be applied in the way that employer can be held

liable only if he controlled the way of doing the negligent act done by the employee. 101

Control test is important and decisive factor in determining the employer employee

relationship102.

In the present factual scenario also when the two hour story was covered by the Sartaj the

control of the Quibbler TV can be observed in the ways that the story was dissected by the

97
Supra note 95.
98
Slipper v. British broadcasting Corp. , (1991) 1 QB 283
99
Id.
100
Dharangadhra Chemicals Works Ltd. v. State of Saurashtra, AIR 1957 SC 264: Collins v. Hertfordshire
County Council, (1947) KB 598, 615.
101
Supra 2, Dharangadhra Chemical Works Ltd. v. State of Saurashtra, AIR 1957 SC 264.
102
Silver Jubilee Tailoring House v. Chief Inspector of Shops and Establishments, (1974) 3 SCC 498 (507)

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 channel and both the twitter campaign as well as the asking the customers for voting was

done by the channel.103 Therefore, Quibbler had exercised control in the way the work was

done and thus control test can be applied.

F. RELATION BETWEEN SARTAJ AND QUIBBLER TV IS SUCH TO GIVE RISE TO THE

VICARIOUS LIABILITY

To establish vicarious liability, the relationship between two people must be of such a nature

as to give rise to vicarious liability and one such relation can be that of employer and

employee.104 If employer has enjoyed the benefits of the employees work, in such case

employer should also be held liable for the negligence of the employee. 105 As employer earns

profits from the activities of his employee and thus should be held liable to compensate for

the damages done by him to a third party during course of employment.106

In the present case, the relationship between Quibbler TV and Sartaj Singh is such that it

makes Quibbler TV vicariously liable for Sartaj Singh’s negligent acts. As Sartaj Singh is an

employee of Quibbler TV. Also that the benefits arising from the shows hosted by Sartaj

Singh are enjoyed by Quibbler TV and the profits from his primetime show also accrue to

Quibbler TV. Hence, Quibbler TV and Sartaj Singh have a relationship that gives rise to

vicarious liability of Quibbler TV and Quibbler TV is liable for the negligent acts of Sartaj

Singh.

G. THE DUTY TRANSFERRED TO SARTAJ SINGH WAS A NON- DELEGABLE DUTY

In some cases, employer is liable even for the acts of independent contractor when employer

owes a non-delegable duty to the claimant.107 There are two categories of non-delegable

103
Proposition ¶ 5
104
Catholic Child Welfare Society v.Institute of the Brothers of the Cristian Schools [2012] UKSC 56
105
Viasystems Ltd v. Thermal Transfers (Northern) Ltd, [2006] Q.B. 510 ; Cox v. Ministry of Justice [2014]
EWCA Civ 132.
106
Id. ; Supra note 100 .
107
D&F Estates Ltd. V. Church Commissioner [1989] A.C. 177 .

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 duties for which the employer will be liable even for the act of an independent contractor.108

One of the categories is when the act to be done is inherently disastrous or likely to be so.

Other category consists of three inherent categories.109 At first when there is an antecedent

relationship between the claimant and the defendant like some pre-existing contract between

defendant and claimant.110 Secondly, to have a positive duty towards protecting claimant from

the risk that might arise due to the independent contractor’s activity, though defendant must

owe a duty to protect claimant from such risk. Thirdly, duty which arises due to the virtue of

personal relationship of defendant and claimant.111

In the present case, the duty that was delegated Sartaj was to host the news telecast. 112

Hosting a news telecast cannot be regarded hazardous activity. But the second condition 113

i.e. having a positive duty to protect the claimant is applicable here. As it was Quibbler TV’s

obligation to verify the information before publishing the concerned person might get

defamed by such publication. Hence, the duty delegated to Sartaj Singh was a non-delegable

duty and Quibbler TV is liable even if we consider Sartaj Singh as an independent contractor.

H. PLAINTIFF CAN SUE QUIBBLER TV EVEN IF IT QUIBBLER TV HAD NO KNOWLEDGE

OF SARTAJ SINGH'S ACTIVITIES.

The plaintiff may sue author, editor, proprietor, printer and the publisher in the case of

defamation.114All these persons can be held jointly and severely liable if may be sued as

such.115 For instance, in the case of Gurbachan Singh Kosan v. Babu Ram 116 the chief editor

along with other defendants was held liable even if he had no knowledge of the publication of
108
Woodland v. Essex CC [2013] 3 W.L.R. 1227 at [7].
109
Id.
110
Id.
111
Id.
112
Proposition, ¶ 5.
113
Supra note 107.
114
SodhiGurbachansinghkoshan v. babu ram, AIR 1969 Punj 201; Ramesh Chander v. State, AIR 1966 Punj 93;
Dina Nath v. Sayyad Habib, ILR (1929) IO Lah 816 .
115
O. Ramalingam V. Daily Thanti, AIR 1975 Mad 309.
116
Id.

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 the defamatory material.117 Further, corporation can be held liable for the defamation caused

by its servant or agent.118

In this case also the Quibbler TV is the corporation which should be held liable for acts o

Saratj Singh. Moreover, it will be of no use to say that they had no knowledge about the

publication of defamatory material. In conclusion we can say that Quibbler TV cannot take

the defence of no knowledge of publication even when it wants to take such defence it will

not hold.

117
Id.
118
Citizen’s Life Assce. Co. v. Brown, (1904) AC 423, Durga Das Basu, Law of the Press, Fourth Edition, 2002

15
 PRAYER FOR RELIEF

Wherefore in the light of the facts stated, issues raised, authorities cited and arguments

advanced, it is most humbly and respectfully prayed that this Hon’ble High Court may be

pleased to allow, consider the suit and declare that:

 Rachel has committed defamation against Wilson.

 The publication by Sartaj Singh and Quibbler TV constitutes defamation.

 Quibbler TV is not vicariously liable for acts of Sartaj Singh.

 Award damages worth INR 100 crores.

And pass any other order in the favour of the Plaintiff, as this court may deem fit in the ends

of justice, equity and good conscience.

Date:18thFebruary,2019. Counsel for the Plaintiff

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