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3.

WHETHER THE LOWER COURT IS JUSTIFIED IN IMPOSING DAMAGES OF RS 100


CR ON THE PETITIONER?

If the two classes of society which saw the report on PRBL are considered, it would be the Commented [K1]: Dont you think there are three classes of
people?
people who knew Mr. P. B .Amrit and the people who did not. The people who knew Mr.P B 1. Those who knew how PB Amrit looked, saw the name mentioned
below the picture (PK Amritya) and would infer that there was a
Amrit knew that the man in the picture was not PB Amritya and hence there was no possibility of mistake.
2. Those who did not know how PB Amrit looked, saw the name
below and considered the photo to be of PB Amrit.
any defamation with regard to such class of people. The reputation of Mr P B Amrit would not 3. Those who saw only the photo (Since a picture a speaks a
thousand words :P) and inferred PB Amrit himself to be involved.
diminish in the eyes of such people as they would immediately know that the channel was
Commented [U2]: Maybe I'll save para 1 & 2 for verbal
making a mistake. The people who did not know Mr. P B Amrit were unaware also of his arguments.

reputation and therefore he could not be defamed in front of them. If there are two possible
interpretations of an allegedly defamatory statement or publication, the defamatory meaning is
not the preferred meaning.1

The respondents claim that the said flashing of photograph created false impression amongst all
the viewers in India that Justice Amrit . Such a statement is devoid of any legal value. If the Commented [K3]: Sentence incomplete.

defamatory statement consists of an article with a headline and photograph the whole of the
article including the headline and photograph has to be taken together and considered whether in
its natural and ordinary meaning which may be ascribed to it by ordinary men as being
defamatory of the plaintiff.2 It is impossible to know whether the telecast created a false
impression amongst all viewers in India and abroad.

3.1 Absence of malice

The dictionary meaning of corrigendum is a thing to be corrected. So the defendants by the


above said text have made correction of a showing of photograph of the plaintiff in scam case.
Further, the channel apologized for a thing which was shown erroneously. From this text, there
is nothing to show that the channel has made written apology of Justice P B Amrit in person,
though it has shown a high regard and esteem towards Justice P.B. Amrit . It is also pertinent to Commented [K4]: Remove this, this is against us. Also high
regard and esteem was mentioned in the actual case and not in
note that the abovesaid corrigendum was scrolled on a channel only without receiving a notice our moot. This does not help our case.

from Justice P B Amrit . The part of public apology was performed meaning thereby a corrective
step was taken by the defendants immediately. The same public who might have seen Justice P B

1
Habib Bhai Bhai v Pyarelal AIR 1964 MP 62 (1963) MPLJ 891 , (1963) Jav LJ 979.
2
Charleston v New Group Newspapers Ltd [1995] 2 All ER 313
Amrit 's picture in relation to the scam also saw that PBRL made amends and did not show the
picture in the subsequent bulletins and apologized to Justice Amrit and ran the apology in scroll
news for five continuous days.

The law relating to the similarity of names was laid down in Hulton v Jones. In Hulton v Jones3
the House of Lords held that if reasonable men understood the words to refer to the plaintiff, the
defendants would be liable notwithstanding the absence of any intention to defame the plaintiff.
The principle has been followed in India.4 The rule has been criticised as extending the liability
for defamation beyond the limits of older precedents5 and was abrogated in England by the
Defamation Act 1952.6

According to the defendants flashing of photograph was unintentional as it was flashed due to
similarity in the names of Justice P B Amrit and Justice P K Amritya. Therefore, in the
present case due to similarity in the names of the plaintiff and similarity in the nature of their
description and the tags associated with each component of the database the automated
application picked up the respondent's photograph instead of Justice P.K. Amritya. PRBL, being
a leading news channel, understandably has high tech to maintenance its system. The system is
based on automated application which allows delivery of content including photographs images,
videos etc. onair. It is not a process where a sudden action was taken to relay photograph. Since
the news relating to scam was breaking news, by taking a quick search of photograph of Justice P
K Amritya was made from existing database and the matching string for Justice P B Amrit
instead of Justice P.K. Amritya, under the tag judges was inadvertently displayed. The story was
picked up from data base of a predifined time wherein data is already stored under the tag
'judges'. Commented [K5]: The facts of our moot problem does not
state any of these. You sure you want to state these?

The 1964 case New York Times Co. v. Sullivan7, dramatically altered the nature of libel law in
the United States by elevating the fault element for public officials to actual malicethat is,
public figures could win a libel suit only if they could demonstrate the publisher's "knowledge

3
9 [1910] AC 20; [1909] 2 KB 444.
4
Ogilvie v Panjab Akbharat Co (1919) ILR 11 Lah 45;Also See Naganatha v Subramania (1917) 32 MLJ
392, 298.
5
1 Holdsworth, Accidents , Law of Libel, 57 LQR 74 ; See Knuppfer v London Express Newspaper
[1942] 2 All ER 555, 561, per Goddard LJ.
6
Section 4 Defamation Act , 1952 (England).
7
376 U.S. 254 (1964)
that the information was false" or that the information was published "with reckless disregard of
whether it was false or not".

Furthermore, it was discussed if there existed any enmity or any reason for the defendants
intentionally or deliberately to show the photographs of the plaintiff with a view to cause harm or
with a view to defame him. The error committed on part of the defendant was committed as part
of an inadvertent human error with the absence of any mala fide intention. This is understood Commented [K6]: This is contradicting to the previous para
(See comment K5).
from the argument made by PRBL wherein they claim that they are a live TV channel and that There you said computer error and here youve said human error.

its not practically possible for them to review everything twice before they broadcast due to
paucity of time. Moreover, they claimed that the names were similar in some aspects and hence,
it cannot be seen as a mistake which could not have been made. Furthermore, it must be seen that
the defendants act cannot be termed as one which is calculated to make a profit at the plaintiffs
expense. This is understood from the fact that they mistakenly broadcasted the picture of PB
Amrit , but they still carried the name along with it of the person actually accused, PK Amritya.
Therefore, this conclusion can only seem plausible.

3.2 The damages claimed is not quantified, thus unjustified

Even assuming that the defendants were liable for defamation, the quantum of the damages
awarded to the plaintiff to the tune of Rs. 100 crores does not follow the established principles of
law. In certain circumstances the court may award more than the normal measure of damages,
taking into account the defendants motives or conduct. Such damages may be aggravated
damages or exemplary damages. Aggravated damages are compensatory in nature. Exemplary
damages are punitive in nature and are awarded to punish the wrongdoer and not to compensate
the plaintiff for the loss.8

It is pertinent to note that Rs. 100 crores awarded to the plaintiff was not as a measure of
awarding exemplary damages; rather the court was merely granting compensation by way of
accepting the prayer of the plaintiff. However, it cannot be logically surmised that claiming Rs.

8
Organo Chemical Industries v Union of India AIR 1979 SC 1803, Also See Prema Korgaonkar v
Mustak Ahmed AIR 1987 Guj 106 (1987).
100 crores by way of compensation is not by itself exemplary in nature but if seen from a
broader perspective, it can be said to be exemplary or punitive in nature.

The very high award of damages in John v. Mirror Newspaper Ltd., which is a leading case,
compelled the court to reiterate this policy of restraint and to develop the law on the guidance
that should be given to juries. Now it is proper to inform the jury by way of guidance of general
range of damages for non-pecuniary loss in personal injury cases, although the loss of a leg
cannot of course be directly compared with the loss of a reputation. Furthermore, an award of
damages for defamation may include elements of aggravated or exemplary damages, i.e., the
damages cannot be precisely quantified in monetary terms but the claimant is entitled to a
substantial award for wrong committed against him9.

The Indian courts have been reluctant to award punitive damages and the view taken is that if the
offender is to be punished then recourse must be had to the penal law.10 It is also pertinent to
note that exemplary damages have in fact been awarded but only in the case of public
functionaries acting in contravention to the fundamental rights guaranteed by the Constitution.11
Award of exemplary damages must in any case be made sparingly. If official power is exercised
in bona fide manner, exemplary damages should not be awarded despite the fact that unintended
injury is caused to someone.12 Exemplary damages may also be awarded in cases where the
defendant has calculated such as to make a profit for himself which may exceed the
compensation payable to the plaintiff, and this extends to cases where the defendant is seeking to
gain some object at the plaintiffs expense.13

Moreover, it was also discussed that if there existed any enmity or any reason for the Defendants
intentionally or deliberately to show the photographs of the plaintiff with a view to cause harm or
with a view to defame him. Awarding of exemplary damages was wholly wrong in law. The
plaintiff cannot claim damages for the loss he suffers from the defendants wrong which he can

9
[1996] 2 All ER 35 (United Kingdom)
10
I.A Subramanta Iyer v R H Hitchcock AIR 1925 Mad 950, 85 IC 900 (no exemplary damages will be
awarded where defendants conduct is not motivated by private malice or personal grudge).
11
Common Cause, A registered society v Union of India AIR 1996 SC 3081; Lucknow Development
Authority v M K Gupta AIR 1994 SCW 1537.
12
Common Cause AIR 1996 SC 3081
13
See Rookes v Barnard [1964] AC 1129 at pgs 1226-1227; Also See Supra at n.29
mitigate by taking reasonable steps.14 If the plaintiff willfully allows himself to suffer, even
though the defendant is primarily guilty, the responsibility is on the plaintiff for that sufferance.
This an equitable rule to attenuate the rigour of the law.15

Yo Commented [K7]: If possible can you state the maximum


damages given in Indian cases.
The grounds youve stated to claim damages is satisfactory, so
thats chill.

3.3 Character of the court

Even if it is assumed that the defendants were liable, The Learned Judge gave no basis for the
computation of the Rs. 100 Crore as damage. The damages awarded in this case, for a simple error, are
unproportional even by international standards. In England there is an effective cap of 250,000 on libel
damages, in Australia there is a statutory cap of Aus $250,000, even in the United States figures
produced by freedom of expression NGO Article 19 the average libel damages award is US$471,221. Commented [K8]: Is there any proof to show this?

16
The European Court of Human Rights in Tolstoy v United Kingdom while dealing with an award of a
record 1,500,000 damages, concluded that the award was "prescribed by law" but was not "necessary
in a democratic society" as there was not, having regard to its size in conjunction with the state of
national law at the relevant time, the assurance of a reasonable relationship of proportionality to the
legitimate aim pursued. Commented [K9]: Change font type and size. :P

Big media houses make it very difficult to be on their side, even when the press is clearly in the
right and in dire need of support. India ranks thirteenth on the Impunity Index created by the
Committee to Protect Journalists, a hall of shame that spotlights nations where "journalists are Commented [K10]: Please cite this as well.

murdered on a recurring basis and governments are unable or unwilling to prosecute the killers."
Apart from outright murders, outlets are routinely subject to harassment and intimidation by the

14
British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Rlys Co of London
Ltd [1912] AC 673; Also see Gedebal Karibasavana Gowd v Nandavaram Verrabadrappu (1912) ILR 36
Mad 580, 16 IC 14, (where the Judge held that consequences which the plaintiff can reasonably avoid
cannot be called direct and natural consequences of the defendants wrong since it is at the plaintiffs
option to suffer them. In such a case, he is not damaged by the defendants act but by his own negligence
to the consequences).
15
Refusal to compensate for avoidable consequences has usually been rationalized by the courts on
ground that, in the interest of conserving human and material resources, a plaintiff must not be permitted
to recover for losses which accumulated while he sits idly. See 61 Harv L Rev at 131
16
(1995)20 EHRR 442
government, business houses, and corporate personalities. It is important for a balance between
the Media and the as they are two very important pillars of democracy.

4. WHETHER CRIMINAL PROCEEDINGS FOR DEFAMATION CAN BE INITIATED


AGAINST A CORPORATE BODY?

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