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SUPREME COURT OF INDIA
PAMIDIGHANTAM SRI NARASIMHA, ARAVIND KUMAR, JJ.
Yash Raj Films Private Limited – Appellant
Versus
Afreen Fatima Zaidi and Another – Respondents
Civil Appeal No. 4422 of 2024, Arising Out of SLP (C) No. 14475 of 2021
Decided On : 22-04-2024
(A) Consumer Protection Act, 1986 – Sections 2(1)(g), 2(1)(o) and 2(1)(r)(1) – Cinema – Deficiency of service and ‘unfair trade practice – Movie did not contain song even though song was widely circulated for promoting and publicizing the movie – State Commission awarded Rs. 10,000 as compensation for mental harassment and Rs. 5,000 as cost to complainant – Promotional trailer is an advertisement for a film – Promotional trailers are unilateral and do not qualify as offers eliciting acceptance and as such they do not transform into promises, much less agreements enforceable by law – Commercial speech which includes advertisements, is protected through freedom of speech under Article 19(1)(a) of Constitution, subject to reasonable restrictions in Article 19(2) – Commercial speech that is deceptive, unfair, misleading, and untruthful is excluded from such constitutional protection and can be regulated and prohibited by State – Subject to these restrictions, producer/ advertiser has freedom to creatively and artistically promote his goods and services. (Para 5)
(B) Advertisement – Intent and Purpose – Information dissemination is one of primary purposes of advertising – An advertisement is not only informational but also a means of creative and artistic expression – It can allure, entice, capture attention and pique interest of consumers through features that may not directly relate to information about product or service – A song, dialogue or a short visual in a promotional trailer may be seen in context of multifarious uses of advertisements – These could be used to popularize or to create a buzz about release of film, rather than to purely represent information about contents of film – Viewers could associate these with film and may be interested or encouraged to watch film – However, kind of right or liability a promotional trailer creates would entirely depend on civil and statutory legal regime. (Paras 6 and 7)
(C) Consumer Protection Act, 1986 – Sections 2(1)(g), 2(1)(o) and 2(1)(r)(1) – Indian Contract Act, 1872 – Section 2(b) – Cinema – Deficiency of service and ‘unfair trade practice – Any person watching a movie after remitting necessary consideration becomes a consumer of service – Service in this case is that of entertainment – Deficiency alleged in complaint arises out of complainant’s own expectation that song would be a part of movie – It is assumed that there is deficiency of service as movie did not contain song – Essential element of an ‘offer’ or ‘proposal’ for formation of a contract has not been satisfied in present case – A person makes an offer or ‘proposal’ when he signifies his willingness to do something with a view to obtain assent of another person – Promotional trailer by itself is not an offer and neither intends to nor can create a contractual relationship – Since promotional trailer is not an offer, there is no possibility of it becoming a promise – Transaction of service is only to enable complainant to watch movie upon payment of consideration in form of purchase of movie ticket – This transaction is unconnected to promotional trailer which by itself does not create any kind of right of claim with respect to content of movie – No case for unfair trade practice is made out in present case – Services involving art necessarily involve freedom and discretion of service provider in their presentation – This is necessary and compelling by very nature of such services – Variations are substantial – Standard by which a court of law Judges representation, followed by service, must be different and must account for creative element involved in such transactions – Impugned order set aside. (Paras 11, 13, 14, 18, 19 and 20)
Facts of the case:
What are legal implications of a promotional trailer, popularly known as a ‘promo’, or a teaser that is circulated before release of a movie? Does it create any contractual relationship or obligations akin to it? Is it an unfair trade practice if contents of promotional trailer are not shown in the movie? These questions have arisen in context of a consumer dispute wherein consumer courts have allowed complaint alleging deficiency of service based on a ‘contractual obligation’ and ‘unfair trade practice.
Findings of Court:
In view of the above reasons and conclusions, we set aside findings of impugned order that there is deficiency of service and unfair trade practice and allow present appeal.
Result : Appeal allowed.
JUDGMENT :
PAMIDIGHANTAM SRI NARASIMHA, J.
1. What are the legal implications of a promotional trailer, popularly known as a ‘promo’, or a teaser that is circulated before the release of a movie? Does it create any contractual relationship or obligations akin to it? Is it an unfair trade practice if the contents of the promotional trailer are not shown in the movie? These questions have arisen in the context of a consumer dispute wherein the consumer courts have allowed the complaint alleging deficiency of service based on a ‘contractual obligation’ and ‘unfair trade practice’. For the reasons to follow, we have held that promotional trailers are unilateral and do not qualify as offers eliciting acceptance, and as such they do not transform into promises, much less agreements enforceable by law. We have also held that the facts do not indicate adoption of an unfair trade practice under the Consumer Protection Act, 1986. Before we delve into the analysis to draw our conclusions, the short facts necessary for the case are as follows.
2. The appellant is a known film producer. It produced a film called ‘Fan’ in the year 2016. Before the release of the film, the appellant circulated a promotional trailer, both on television and online, which contained a song in the form of a video.
2.1 The respondent no. 1 (‘complainant’) a teacher in a school in Aurangabad, states that having watched the promotional trailer of the film, she decided to go to watch the movie on the silver screen with her family. However, she found that the movie did not contain the song, even though the song was widely circulated for promoting and publicising the movie. She filed a consumer complaint before the District Consumer Redressal Forum wherein she has stated that she decided to watch the movie after watching the song in the promotional trailer, with the expectation of watching the song in the theatre. However, to her disappointment, she found that the song was not played in the movie. She alleges that due to this, she felt cheated and deceived by the appellants and has undergone mental agony. In view of the above, she claimed Rs. 60,550 as damages.
3. In a short order dated 29.04.2016, the District Consumer Redressal Forum dismissed the complaint on the ground that there is no relationship of consumer and service provider.
3.1 Against the above order, the complainant filed an appeal before the State Commission, which was allowed by order dated 22.09.2017. The State Commission held that entertainment services are covered under the definition of ‘service’ and the appellant is a service provider. Apart from holding that there is deficiency in service, the State Commission held that the appellant has engaged in an unfair trade practice as the song in the promotional trailer was widely circulated but not shown in the film. Under these circumstances, the State Commission awarded Rs. 10,000 as compensation for mental harassment and Rs. 5,000 as cost to the complainant.
3.2 The appellant carried the matter to the National Consumer Disputes Redressal Commission.1 [Hereinafter ‘NCDRC’] By the order impugned2 [In Revision Petition No. 156 of 2018, order dated 18.02.2020] the NCDRC held that a consumer would feel deceived if a song that is shown in the promotional trailer is not played in the film, thereby amounting to an unfair trade practice. Further, there is deficiency of service as playing the song in the trailer leads to an implied promise that it will be played in the film. In its own words, the NCDRC held as follows:
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