Aligarh Muslim university centre murshidabad,
(West bengal)
BEFORE
THE HON’BLE HIGH COURT OF JUDICATURE AT MUMBAI
DISPUTE RELATING TO
NEGLIGENCE AND DEFAMATION
CIVIL CASE NO. /2017
[Under Order 7 Rule 1and 2 r/w section 26 and section 19 of Civil Procedure Code, 1908]
In the matter of
MR. HEISENBERG… ...........................................PLAINTIFF
V.
TRAVEL SOLUTIONS PVT. LTD ......................DEFENDANT
MEMORIAL for DEFENDANT
TRAVEL SOLUTIONS PRIVATE LIMITED
SUBMITTED TO; SUBMITTED BY;
ASSISTANT PROFESSOR [Link]
[Link] AZAM ROLL NO-17BALLB-61
DEPARTMENT OF LAW MOD. MANFAT
AMUCJM ROLL NO-17BALLB-57
TABLE OF CONTENTS
LIST OF ABBREVIATIONS ...................................................................................... 1
INDEX OF AUTHORITIES ........................................................................................ 3
STATEMENT OF JURISDICTION… ........................................................................ 8
STATEMENT OF FACTS ............................................................................................. 9
STATEMENT OF ISSUES ............................................................................................ 10
SUMMARY OF ARGUMENTS .................................................................................... 11
ARGUMENTS ADVANCED….................................................................................... 12
ISSUE 1: WHETHER THE DEFENDANT IS LIABLE FOR NEGLIGENCE AND THE
PLAINTIFF ENTITLED TO DAMAGES .................................................................. 12
(A): The negligence was contributory ................................................................... 12
ISSUE 2: WHETHER THE PLAINTIFF IS LIABLE FOR DEFAMATION… .....16
(A) : The statement made was defamatory ............................................................ 16
(B) : The statement referred to the defendant ........................................................ 19
(C) : The statement was published… .................................................................... 20
THE PRAYER ................................................................................................................. 23
MEMORIAL for DEFENDANT TABLE OF CONTENTS
1
LIST OF ABBREVIATIONS
S. NO. ABBREVIATION FULL FORM
1. AIR All India Report
2. Punj Punjab
3. Ker Kerala
4. SCC Supreme Court Cases
5. MPLJ Madhya Pradesh Law Journal
6. ALT Andhra Law Times
7. Cal Calcutta
8. CWN Calcutta Weekly Notes
9. Cr LC Criminal Law Cases
10. KarLJ Karnataka Law Journal
11. ILR Indian Law Reports
12. MLJ Maharashtra Law Journal
13. Ker LT Kerala Law Times
14. Co. Company
15. Ltd. Limited
16. Pvt. Private
17. Moo Moody’s Crown Cases
Reserved, 1824-1844
18. PC Privy Council
QBD Queen’s Bench Division
19.
KB King’s Bench
20.
21. M&W Meeson & Welby
22. LR Law Reports
23. AC Appeal Cases
24. TLR Times Law Report
25. F Federal Reporter
26. Bing Bingham’s Reports
27. Eq Equity
28. B&C Barnwell & Creswell
29. B&Ad Barnwell & Adolphus
30. All ER All England Law Reports
31. HLC House of Lord Cases by
Clark
32. Ind Cas Indian Cases
33. WLR Weekly Law Reporter
34. F&F Foster & Finlayson
35. LW (Cr) Law Weekly Criminal
36. CB (NS) Common Bench, New Series
MEMORIAL for DEFENDANT LIST OF ABBREVATIONS
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37. PLT Patna Law Times
38. HL House of Lords
39. EWHC England & Wales High Court
40. Bom LR Bombay Law Reporter
41. Camp Campbell’s Reports
42. Para Paragraph
43. BLT Burma Law Times
44. p. Page
45. Hob Hobarts’ Reports
46. i.e. That is
47. LT Law Times
48. Cr LJ Criminal Law Journal
49. Hon’ble Honorable
50. & And
51. Rs. Rupees
MEMORIAL for DEFENDANT LIST OF ABBREVATIONS
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INDEX OF AUTHORITIES
STATUTES REFERRED:
1. CIVIL PROCEDURE CODE, 1908
CASES REFERRED:
INDIAN CASES:
1. Bhooni Money v. Natoher Biswas, (1901) ILR 28 Cal 452.
2. Baba Gurudit Singh v. “Statesman” Ltd., (1935) 37 Bom LR 1033.
3. Chellapan Pillai v. R.K. Karanjia, (1961) Cr LJ 142.
4. Cholla Subarayadu v. Darbha Ramakrishna Rao, (1968) 2 ALT 101.
5. G. Chandrasekhara Pillai v. G. Raman Pillai, 1964 Ker LT 317.
6. Girish Chander Mitter v. Jatadhari, (1899) ILR 26 Cal 653.
7. Ghannan v. Glasgow Corporation, AIR 1950 SC 23.
8. Hay v. Asvini Kumar, AIR 1958 Cal 269.
9. K.C. Kumaran v. Vallabhadas Vasanji, AIR 1969 Ker 9.
10. Kumari Podder v. Chittagong Engineering and Electrical Supply Co. Ltd., (1946) Cal.
433.
11. Khima Nand v. Emperor 169 Ind Cas 622.
12. L.S. Jayappa v. N.S. Shame Gowda, 1985 (1) KarLJ 223.
13. Municipal Committee, Jullundur City v. Ramesh Saggi, AIR 1970 Punj 137.
14. P.M. Govindan Nair vs M. Achutha Menon,(1915) 28 MLJ 310.
15. Ramakant v. Devi Lal, 1969 MP LJ 805.
16. Rawlins vs Anant Lal Sahu,(1920) 2 PLT 176.
MEMORIAL for DEFENDANT INDEX OF AUTHORITIES
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17. Shyam Sunder v. State of Rajasthan, (1974) 1 SCC 690, 693-694.
FOREIGN CASES:
18. Allen v. Flood, (1898) AC.
19. Bronu v. Ritchie (1904) F 842.
20. Bromage v. Prosser, (1828) 4 B & C 247.
21. Bluck v. Lovering, (1885) 1 TLR 497.
22. Barrow v. Lewellin, (1615) Hob. 62
23. Butterfield v. Forrester,(1809) 11 East. 60.
24. Clayards v. Dethick, (1848) 12 QBD 439.
25. Capital and Counties Bank v Henty (1887) LR 7 AC 741.
26. Cook v. Ward, (1830) 6 Bing 409.
27. Capell v. Powell, (1864) 17 CB (NS) 743.
28. Cuenod v Leslie, (1909) 1 KB 880.
29. Carr v. Hood (1808) 1 Camp 355.
30. Dixon v. Holden, (1869) LR Eq 488.
31. De Crespigny v. Wellesley, (1829) 3 Bing 392.
32. Digby v. Thompson, (1833) 4 B&Ad 821.
33. Duke of Brunswick v. Harmer, (1849) 14 QBD 185
34. Davies v Swan Motor Co, 1 All ER 620.
35. Du Bost v. Beresford, (1810) 2 Camp 355n.
36. Englishman, Ltd., v. Antonio, 1931 Cal 81.
37. Greville v. Chapman, (1844) 5 QB 731.
38. Hough v. London Express Newspapes, (1940) 2 KB 507.
MEMORIAL for DEFENDANT INDEX OF AUTHORITIES
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39. Hulton v. Jones, (1910) AC 20.
40. Holdsworth v. Associated Newspapers Ltd., (1937) 3 All ER 872.
41. Harrison v. Pearce, (1858) 1 F&F 567
42. Imperial Chemical Industries Ltd v Shatwell (1964) 3 WLR 329.
43. Ingram v Lawson (1840) 6 Bing NC 12
44. Jack Monroe v. Katie Hopkins, (2017) EWHC 433 (QB).
45. Jones v. E. Houlton & Co., (1909) 2 KB 444, 455
46. Lewis v. Denye, (1939) 1 KB 540.
47. Le Fann v. Malcolmson,(1848) 1 HLC 637.
48. Morgan v. Sim, (1857) 11 Moo (PC) 307.
49. Miss Violet Wapshare v. Miss Maureen Froud, 1970 LW (Cr) 4.
50. Mackay v. M. Chankie, (1888) 10 Rattie 537.
51. Nance v. British Columbia Electric Co. (1951) 2 All ER 448 (HL).
52. Newstead v. London Express Newspapers Ltd., (1939) 2KB 317, (1940) 1 KB 377
53. Parmitter v Coupland (1840) 6 M&W 105.
54. Pullman v. Hill, (1891) 1 QB 524.
55. R. v. Munslow, (1895) 1 QB 758.
56. R. v. Burdett, (1821) 4 B&Ad 314.
57. Ratcliffe v. Evans, (1892) 2 QB 524.
58. Savory & Co. v. Lloyds Bank, (1932) 2 KB 122.
59. Shyam Sunder v. State of Rajasthan, (1974) 1 SCC 690.
60. Sim v. Stretch, (1936) 2 All ER 1233.
61. Suri v. Stretali, (1936) 2 All ER 1237.
MEMORIAL for DEFENDANT INDEX OF AUTHORITIES
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62. Sturt v. Blagg (1847) 10 QB 906.
63. Silikin v. Beaverbrook Newspapers, (1958) 2 All ER 536: (1958) 1 WLR 743.
64. Voneouver General Hospital v. M.C. Daniel,(1934) 152 LT 56.
65. West v West (1911) 27 TLR.
66. Wennhak v. Morgan, 20 QBD 635.
67. Wakley v. Cooke, (1849) 4 Ex 511.
68. Wakley v. Healey, (1849) 7 CB 591.
69. White v. J and F, Stone (Lightning and Radio), Ltd., (1939) 2 KB 827.
70. W. A Providence v. P.T. Christensen, (1914) 7 BLT 155.
71. Turney v. Metro Goldwin Mayor Pictures Ltd., (1950) 1 All ER 449.
BOOKS REFERRED:
1. Law of Torts and Consumer Protection by Dr. J.N. Pandey.
2. The Law of Torts by M.N. Shukla.
3. Law of Torts by R.L. Anand.
4. Law of Defamation & Malicious Prosecution by V. Mitter.
5. Law of Torts by Ramaswamy Iyer.
6. Trademarks by D.P. Mittal.
7. Law of Torts and Consumer Protection Act by Dr. S. [Link].
8. The Law of Torts by Durga Das Basu.
9. The Law of Torts by Ratanlal & Dhirajlal.
MEMORIAL for DEFENDNANT INDEX OF AUTHORITIES
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ELECTRONIC SOURCES:
1. [Link]
2. [Link]
3. [Link]
4. [Link]
MEMORIAL for DEFENDANT INDEX OF AUTHORITIES
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STATEMENT OF JURISDICTION
The counsel on behalf of the plaintiff has submitted the memorandum of plaint under Order 7
Rule 1and 2 r/w section 26 and section 19 of Civil Procedure Code, 1908 to the Hon’ble High
Court of Judicature at Mumbai. The defendant humbly submits to this jurisdiction.
MEMORIAL for DEFENDANT STATEMENT OF JURISDICTION
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STATEMENT OF FACTS
BACKGROUND
The plaintiff, Mr. Heisenberg is a data analyst at Data Max. The defendant, Travel Solutions Pvt.
Ltd., is a highly reputed company based in Mumbai which provides travel services. Mr.
Heisenberg contacted Travel Solutions Pvt. Ltd. for arranging his trip to Australia with his wife
and two kids. Travel Solutions Pvt. Ltd. assured Mr. Heisenberg that visa issuance takes 10-15
days. Mr. Heisenberg got the flight booked to Sydney, from Chennai instead of Mumbai on
08.09.2017 on the advice of Travel Solutions Pvt. Ltd and was asked to give the documents for
visa processing on 07.08.2017, as in the list given, to Mr. Tommen which were submitted on
11.08.2017 but by that time Mr. Tommen had already left. The documents were dispatched by the
receptionist on 16.08.2017 which were received on 18.08.2017 and verified on 21.08.2017 by the
embassy. Mr. Heisenberg sent the missing document on 22.08.2017 which was received on
23.08.2017 by Travel Solutions Pvt. Ltd. On 06.09.2017, Travel Solutions Pvt. Ltd. received the
passports and sent its image to Mr. Heisenberg on WhatsApp and also told Mr. Heisenberg that
the passports shall be sent to Chennai airport directly, due to less time. Mr. Heisenberg with his
family, reached Chennai by 14:00 hrs on 08.09.2017.
DISPUTE AND THE SUIT
The passports reached only by 21:00 hours by which Mr. Heisenberg had missed his flight. Out
of frustration he tweeted “Travel Solutions Private Limited – a bunch of liars, cheaters and
thieves with no ethics. The worst company ever”, along with a picture of his family on Facebook
with #TSPL sucks and logo of the company, which was widely condemned. Mr. Heisenberg sued
Travel Solutions Pvt. Ltd. before the High Court of Mumbai for negligence for a sum of Rs. 1
crore. Travel Solutions Pvt. Ltd. filed a counterclaim for defamation.
MEMORIAL for DEFENDANT STATEMENT OF JURISDICTION
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STATEMENT OF ISSUES
ISSUE 1: WHETHER THE DEFENDANT IS LIABLE FOR NEGLIGENCE AND THE
PLAINTIFF ENTITLED TO DAMAGES?
(A) : The negligence was contributory.
ISSUE 2:WHETHER THE PLAINTIFF IS LIABLE FOR DEFAMATION.
(A): The statement made was defamatory.
(B): The statement referred to the defendant.
(C): The statement was published.
MEMORIAL for DEFENDANT STATEMENT OF ISSUES
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SUMMARY OF ARGUMENTS
ISSUE 1: WHETHER THE DEFENDANT IS LIABLE FOR NEGLIGENCE AND THE
PLAINTIFF ENTITLED TO DAMAGES?
It is humbly submitted before this Hon’ble court that there was contributory negligence also on
the part of plaintiff also there was an involvement of third party in the whole subject matter
complained of.
ISSUE 2: WHETHER THE PLAINTIFF IS LIABLE FOR DEFAMATION?
The counsel on behalf of the defendant contends that the statement made was defamatory which
clearly referred to the defendant. The statement made was published on Twitter and Facebook
which comes under the scope of libel and is actionable.
MEMORIAL for DEFENDANT SUMMARY OF ARGUMENTS
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ARGUMENTS ADVANCED
1. WHETHER THE DEFENDANT IS LIABLE FOR NEGLIGENCE AND THE
PLAINTIFF ENTITLED TO DAMAGES?
The counsel humbly submits to this Hon’ble Court that the defendant is not liable for negligence
and thus the plaintiff is not entitled to damages. The defendant pleads that the plaintiff has not
come to the court with clean hands as- the negligence was contributory.
(A) The Negligence was Contributory
1. It is the common law rule that anyone who by his own negligence contributed to the injury of
which he complains cannot maintain an action against another in respect of it. For he will be
considered in law to be author of his wrong. This rule was laid down in Butterfield v.
[Link] is important to mention here that the plaintiff was given a list of documents to
be submitted for visa issuance process by the defendant despite which he failed to submit the
documents in order and consequently there was a delay in filing the documents with the
embassy.
2. A plaintiff is guilty of contributory negligence when he has by his own want of care so far
contributed to the damage occasioned by the negligence or improper conduct of the
defendant that but for want of care the damage would not have occurred.2 It is humbly
submitted that even when the fault was on the part of plaintiff, the defendant managed to get
the visa issued within 14 days from the date of filing the documents to embassy as was
1
(1809) 11 East. 60.
2
Underhills Law of Torts, 15th (1946) edn. P 186.
MEMORIAL for DEFENDANT ARGUMENTS ADVANCED
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assured by the defendant.3The documents were filed along with the visa form on 23.08.2017
and the visas were issued on 06.09.207 i.e. within 14 days. The plaintiff was under a legal
duty to take care for his own safety.4The company won’t be responsible for none issuance of
visa due to receipt of incomplete/ delayed document from the client. This is at the sole
discretion of the consulate/authorities.
3. The doctrine of contributory negligence is based on the maxim “injure non remota causa sed
proxima spectator” which means that the law takes into consideration only the proximate
cause and not the remote [Link] negligence and default of the plaintiff was in any degree
the proximate cause of the damage, so he could not recover.5 Had the plaintiff submitted
documents in order earlier, the defendant would have submitted the documents with the
embassy even earlier and there wouldn’t have been any delay in issuance of visa. The
plaintiff had failed to take the ordinary care of himself.6
4. It has been held in the case of Voneouver General Hospitalv. M.C. Daniel7, -
“A defendant charged with negligence can clear himself if he shows that he has acted in
accordance with general and approved practice.”
The Judgement proves the defendant’s conduct as the duty of the defendant on receipt of visa
application was only to verify the documents and submit the application with supporting
documents with the Embassy and collect the passports in sealed envelopes from the Embassy
3Para 3, moot problem.
4
Kumari Podder v. Chittagong Engineering and Electrical Supply Co. Ltd., (1946) Cal. 433.
5
R.L. Anand, Law of Torts, p. 730.
6
Lewis v. Denye, (1939) 1 KB 540.
7
(1934) 152 LT 56, per Lord Alness at p. 57.
MEMORIAL for DEFENDANT ARGUMENTS ADVANCED
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on the appointed time which was fulfilled by the defendant. Hence, the defendant has acted
in accordance with the general practice.8 The usual and general practice cannot be
condemned as negligent even if the subsequent experience may prove that some additional
precaution was necessary.9All the reasonable precautions were taken by the defendant to
avoid the injury.10
5. The counsel on behalf of the defendant also contends that issuance or rejection of visa is the
absolute prerogative of the concerned Embassy only and for any delay in issuance of visa, the
defendant cannot be held liable. The defendant acted as a facilitator between the plaintiff and
the Australian High Commission and had no role in this regard. The defendant sincerely
denies any deficiency in service on its part.
6. It is important to mention here that the happening of the event i.e. issuance of visa depended
upon a third party i.e. the Australian High Commission. The process of issuance of visa is in
the sole control and discretion of the concerned embassy, which is the general practice. The
event was not in the control of defendant and thereby, the plaintiff cannot claim anything
from the defendant. The visa was issued on 06.09.2017 and the flight of the plaintiff was
scheduled on 08.09.2017. The defendant only suggested that passports will be sent to
Chennai airport directly owing to paucity of time. The plaintiff being so sceptic about the
delay could have come and collected the passports from the defendant as he had a good time
8
Ibid.
9
Savory & Co. v. Lloyds Bank, (1932) 2 KB 122 at p. 134.
10
Shyam Sunder v. State of Rajasthan, (1974) 1 SCC 690, 693-694.
MEMORIAL for DEFENDANT ARGUMENTS ADVANCED
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period of 2 days. A reasonable man is generally a cool and collected person and remembers
to take precaution for his or her own safety in an emergency.11
7. The defendant never had any malafide intention of cheating the plaintiff as when the
passports were received by the defendant, the image of the visas were sent to the plaintiff on
WhatsApp.
8. The defendant was advising and making the plaintiff aware of the better possibilities, in its
professional capacity, as the ticket booking from Chennai was much more economical than
that of Mumbai. The act of sending the passports to the Chennai Airport had also been made
to ensure the safety and avoid any kind of loss to the plaintiff, as dispatching them to
Mumbai was risky which showed the defendant’s bona fide intention. The whole and sole
intention of the defendant was only to provide better services and prevent any sort of harm to
the plaintiff by refraining from the activities which would lead to greater risks and amount to
heavy losses.
Hence, it is established before this Hon’ble Court that the plaintiff has not come to the court with
clean hands as the plaintiff himself contributed to the injury complained of and is not entitled to
the damages as sought.
11Ghannan v. Glasgow Corporation, AIR 1950 SC 23.
MEMORIAL for DEFENDANT ARGUMENTS ADVANCED
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2. WHETHER THE PLAINTIFFIS LIABLE FOR DEFAMATION?
It is humbly submitted before this Hon’ble Court that the plaintiff is liable for defamation owing
to a malicious propaganda as- The statement made was defamatory (A); the statement referred to
the defendant (B); the statement was published (C).
(A) The statement made was defamatory
9. The statement made by plaintiff on Twitter was – Travel Solutions Private Limited – a bunch
of liars, cheats and thieves with no ethics. The worst company ever”.The plaintiff, further
proceeded with a detailed post on Facebook with a picture of the plaintiff along with the
family in the airport which ended with “#TSPL sucks and a logo of the company". The words
are prima facie defamatory.
10. A statement is defamatory when it has the tendency to injure a persons’ reputation. The usual
definition adopted in judgements is that a defamatory statement is 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 neighbors’.12The language used by the plaintiff
was extremely vituperative. The usage of words such as ‘liars’, ‘cheats ‘and‘thieves’ was an
extremely harsh comment on the moral character of the defendant whichhad made the
defendant suffered a tremendous loss of [Link] is defamatory to impute dishonesty13 or
12
Parmitter v Coupland (1840) 6 M&W 105.
13
Greville v. Chapman, (1844) 5 QB 731.
MEMORIAL for DEFENDANT ARGUMENTS ADVANCED
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immorality14. To state that a person has not that degree of skill which he holds himself as
possessing is defamatory.15
11. The plaintiff had a malicious propaganda, which is evident by the fact that the mode used by
the plaintiff for defaming were the two most popular social networking sites i.e. Twitter and
Facebook which have the capability of reaching to thousands of people within a short span of
time. Mode of the publication is an important test for determining that the words are
defamatory.16 Malice is implied from publication of a defamatory statement.17The
publication when made with the intention of defaming someone constitutes defamation.18
12. It has been held in Sim v. Stretali19 -“The test of a defamatory nature of a statement is its
tendency to excite against the plaintiff the adverse opinions or feeling of other persons. The
typical form of defamation is an attack upon the moral character of the plaintiff attributing to
him any form of disgraceful conduct.”
The statements were defamatory in their natural and ordinary meaning as it excited adverse
opinion or feelings of other persons against the defendant which was evident by the fact that
the tweet was retweeted several thousand times and the hashtag was also trending the very
next day. The incident gathered widespread condemnation on the internet which held public
hatred, contempt and hadhampered the business of the defendant.
14
Hulton v. Jones, (1910) AC 20.
15
Turney v. Metro Goldwin Mayor Pictures Ltd., (1950) 1 All ER 449.
16
Sturt v. Blagg (1847) 10 QB 906.
17
Bromage v. Prosser, (1828) 4 B & C 247.
18
Miss Violet Wapshare v. Miss Maureen Froud, 1970 LW (Cr) 4.
19
(1936) 2 All ER 1237.
MEMORIAL for DEFENDANT ARGUMENTS ADVANCED
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13. The statement is defamatory if it conveys a defamatory meaning about the plaintiff to
reasonable men placed on the position of those to whom it was published.20 The standard of
understanding is that of the ordinary, reasonable man21. In the case of Jack Monroe v. Katie
Hopkins22, claimant succeeded in recovering damages in a Twitter Libel, the High Court of
England held that in the context of Twitter, the reader should be taken to be a reasonable
representative of users of Twitter who follow the defendant, but taking into account that
readership of a tweet may go beyond these followers. Whether that meaning is defamatory
depends on whether it would tend to have a substantially adverse effect on the way that right-
thinking members of society would treat the defendant.23
14. The right of a person during his lifetime to the unimpaired possession of his reputation and
good name is recognized by law.24Everyone has an inherent right to have his reputation
preserved inviolate. It is a jus in rem a right absolute and good against all the world. A man’s
reputation is his property and possibly more valuable than any other form of property.25 The
right of the defendant is violated by the plaintiff.
The phrase - 'The worst company ever', degrades the efficiency of the defendant. It implies
the inability of the defendant in attaining good standards which is certainly not the case. The
plaintiff didn’t stop here and used the word ‘sucks’ which is extremely vulgar and
disparaging. The plaintiff has no right to use such derogatory words.
20
Capital and Counties Bank v Henty (1887) LR 7 AC 741.
21
West v West (1911) 27 TLR.
22
[2017] EWHC 433 (QB).
23
Ibid.
24
Clerk and Lindsell on Torts, p. 773. Bronu v. Ritchie (1904) F 842.
25
Dixon v. Holden, (1869) LR Eq 488.
MEMORIAL for DEFENDANT ARGUMENTS ADVANCED
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15. The plaintiff had published a statement which had brought the defendant into hatred,
contempt or ridicule and lowered the reputation in the eyes of right- thinking members of
society generally.26
In light of the statements made above, it is humbly submitted before this Hon'ble Court , that the
defendant has suffered tremendously on account of having its image lowered in the eyes of
public because of the false and defamatory statements published by the plaintiff on Twitter and
Facebook.
(A) The statement referred to the defendant
16. It is humbly submitted before this Hon’ble Court that the derogatory statements used by the
plaintiff clearly referred to the defendant which is evident by the fact that the plaintiff had
started the statement with the full name of the defendant and ended the social media post
with the logo of the company. Hence, all the statements were directed towards the defendant.
17. It is important to mention here that the usage of the logo of the company is the violation of
defendant’s IPR rights. A logo is a visual depiction of a company and gives identity to it.
They are identified by consumers, and, are used as means of creating brand recognition and
corporate image.27Corporate logo is like the personality of a brand which is carefully built up
over a period of time, and, is the result of the inputs of product quality, communication and
[Link] plaintiff strictly had no right to upload the logo with the defamatory
statements.
26
Sim v. Stretch, (1936) 2 All ER 1233.
27
Trade Marks by D.P. Mittal.
MEMORIAL for DEFENDANT ARGUMENTS ADVANCED
20
18. Every man whether he is in public life or not, is entitled not to have lies told about him and
by that is meant that one is not entitled to make misstatement of facts about a person which
are untrue and which redoundto his discredit. That is to say it tends to lower him in the
estimation of right- thinking men.28
(A) The statement was published
19. A man’s reputation is the estimate in which others hold him, not the good opinion which he
entertains about himself. The attack on his reputation will therefore follow when the words
calculated to harm his reputation are communicated to some third party i.e., to some person
other than the person defamed, and in law this communication of defamatory words to a third
party is termed publication. “Publication is the making known the defamatory matter after it
has been written to some person other than the person of whom it is written”.29 As already
mentioned and evident by the facts, the mode used by the plaintiff for defaming the
defendant was Twitter and Facebook. Twitter and Facebook, being two of the largest social
networking services, have the potential of reaching, number of people worldwide within
blink of an eye. The monthly active users of Twitter were 330 million and of Facebook were
2.2 billion in 2017.30Tweets can be held to the same standard as a ‘reputable’ or ‘serious’
publication.31
28
Silikin v. Beaverbrook Newspapers, (1958) 2 All ER 536: (1958) 1 WLR 743.
29
Pullman v. Hill, (1891) 1 QB 524.
30
[Link].
31
Jack Monroe v. Katie Hopkins, (2017) EWHC 433 (QB).
MEMORIAL for DEFENDANT ARGUMENTS ADVANCED
21
20. It comes under the scope of a [Link] publication of the defamatory statement by the
plaintiff was a disparagement in respect of the defendant's professional and official
reputation. It was not made to a confined group of people but through larger media. The
plaintiff had called the business reputation of defendant into question by his publication.
21. Every repetition of defamatory matter is a fresh publication and a fresh cause of action.32 The
Facebook image was shared several hundred times and the tweet was retweeted several
thousand times33. Hence, the defamatory matter was repeated not once or twice but ‘several
thousand times’ which gave rise to a fresh cause of action. Republication of a libel is
actionable in the same way as a prior publication even though the republication mentions that
its information is derived from some particular named source.34
22. In Chellapan Pillai v. R.K. Karanjia,35 the accused was prosecuted for having printed and
published a photograph with a false caption with the intention of harming the reputation of
the complainant. It was held that publication of a photograph with a false caption would
amount to defamation. In the case concerned, the plaintiff had posted the photograph of his
entire family on Facebook which ended with # TSLP Sucks along with logo of the company.
The caption is false as the plaintiff had placed entire blame on the defendant which was
certainly not the case, and was published with the sole intention of harming the reputation of
the defendant.
32
Duke of Brunswick v. Harmer, (1849) 14 QBD 185.
33
Para 16, moot problem.
34
G. Chandrasekhara Pillai v. G. Raman Pillai, 1964 Ker LT 317.
35
1961 Cr LJ 142.
MEMORIAL for DEFENDANT ARGUMENTS ADVANCED
22
Hence, it is well- established before this Hon’ble Court that the acts and conducts of the plaintiff
are defamatory, false and concocted. The above mentioned acts have caused serious damage to
the image, reputation and goodwill of the defendant before the whole society which is its asset.
In view of this, the defendant humbly requests this Hon’ble Court to direct the plaintiff to
remove the defamatory statements from Twitter and Facebook and publish an apology on the
same. The apology should contain a complete withdrawal of the imputation and an expression of
regret for having made it.
MEMORIAL for PLAINTIFF ARGUMENTS ADVANCED
23
PRAYER
Wherefore, in the light of facts stated, the cases cited, issues raised, arguments advanced and
authorities cited, it is most humbly prayed and implored before the Hon’ble High Court of
Judicature at Mumbai, that it may be graciously pleased to adjudge and declare that:
1. The defendant is not liable for negligence and the plaintiff is not entitled to damages as
sought.
2. The plaintiff is liable for defamation and the suit of the plaintiff be dismissed with
heavy costs.
3. The plaintiff be directed to remove the tweet and Facebook post and publish an
apology on the same.
Also, pass any other order that the court may deem fit in the favour of plaintiff to meet the ends
of equity, justice and good conscience.
For this act of Kindness, the Defendant shall duty bound forever pray.
Place: Respectfully submitted,
Dated: Counsel for Defendant
MEMORIAL for DEFENDANT ARGUMENTS ADVANCED
