A PROMOTIONAL TRAILER IS NOT BY ITSELF AN OFFER AND NEITHER INTENDS TO NOR CAN CREATE A CONTRACTUAL RELATIONSHIP

[Mr. M. GOVINDARAJAN]

In YASH RAJ FILMS PRIVATE LIMITED VERSUS AFREEN FATIMA ZAIDI & ANR. - 2024 (4) TMI 897 - SUPREME COURT, the appellant, in the present appeal, produced a film in the name of ‘Fan’ in 2016.  He circulated a promotional trailer in the television and on online before the release of the said film.  On seeing the said trailer the respondent in this appeal she decided to see the film on its release with her family.  The respondent did not see the song circulated in the trailer. 

The respondent filed a consumer complaint before the District Forum.  She contended before the District Forum that she decided to see the film ‘Fan’ after watching the song in the promotional trailer.  To her disappointment she found that the song was not played in the movie.  She contended that she was cheated and deceived by the appellants.  Therefore, she has gone mental agony.  She claimed Rs.60,550/- as damages.

The District Forum dismissed the appeal on the ground that there is no relationship of consumer and service provider.  On appeal by the respondent, the State Commission allowed the appeal filed by the respondent.  The State Commission held that the entertainment services are covered under the definition of ‘services’ and the appellant is a service provider.  The State Commission awarded Rs.5000/- as compensation.   

The appellant filed an appeal before the National Commission against the order of State Commission.  The National Commission 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. 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. 

Against the order of National Commission, the appellant filed the present appeal before the Supreme Court.  The Supreme Court observed that a promotional trailer is an advertisement for a film.  It is a settled position that commercial speech, which includes advertisements, is protection through freedom of speech under Article 19(1)(a) of the Constitution, subject to the reasonable restrictions in Article 19(2).  An advertisement is not only informational but also a means of creative and artistic expression.  These contain unique taglines, jingles, visuals etc. that are intended to grab the attention of the viewer and become associated and synonymous with the product or service itself.  A promotional trailer could be used to popularize or to create a fuzz about the release of the film, rather than to purely represent information about the contents of the film.

The Supreme Court analyzed the various provisions of the Consumer Protection Act that defines the terms ‘consumer’, ‘service’, ‘deficiency’ and ‘unfair trade practice’.  The Supreme Court observed that the deficiency alleged in the complaint arises out of the complainant’s own expectation that the song would be a part of the movie.  It is assumed by her that there is a deficiency of service as the movie did not contain the alleged song.  The misplaced assumption of the appellant that the trailer is an offer or a promise.  The complainant has assumed that the subsequent formation of a contract to which the movie is not in compliance with the promise allegedly made through the promotional trailer. 

A promotional trailer is a unilateral.  A promotional trailer by itself is not an offer and neither intends to nor can create a contractual relationship.  Since the promotional trailer is not an offer there is no possibility of it becoming a promise.  The transaction of service is only to enable the complainant to watch the movie upon the payment of consideration in the form of purchase of the movie ticket.  This transaction is unconnected to the promotional trailer, which itself does not create any kind of right of claim with respect to the content of the movie.

The Supreme Court further observed that the ingredients of ‘unfair trade practice’ under Section 2(1)(r) are not made out in this case.  The promotional trailer does not fall under any of the instances of ‘unfair method or unfair and deceptive practice’ contained in Section 2(1)(r) (1) that pertains to unfair trade practice in the promotion of goods and services.  Nor does it make any false statement or intend the mislead the viewers.  The burden is on the complainant to produce cogent evidence that proves unfair trade practice. 

In view of the above the Supreme Court set aside the findings of the impugned order that there is deficiency of service and unfair trade practice.  The Supreme Court, therefore, allowed the appeal.