Movie Trailer Not A Promise, Producer Not Liable If Content Shown In Trailer Is Not Included In Film: Supreme Court

The Supreme Court on Monday (April 22) held that not including the content that was part of the promotional trailer of the movie, in the released movie doesn't amount to a 'deficiency of service' on the part of the movie creators under the consumer protection law.

The Bench comprising Justices PS Narasimha and Aravind Kumar decided on a question as to whether there is any 'deficiency' in the provision of the entertainment service that the consumer has availed by paying the consideration through the purchase of a ticket. The complainant alleged that there is a 'deficiency' in the service because what was shown in the movie's trailer was not part of the movie. 

"A promotional trailer is unilateral. It is only meant to encourage a viewer to purchase the ticket to the movie, which is an independent transaction and contract from the promotional trailer. 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. Therefore, there is no offer, much less a contract, between the appellant and the complainant to the effect that the song contained in the trailer would be played in the movie and if not played, it will amount to deficiency in the service.", the Judgment authored by Justice PS Narasimha answered the question.

A plea was preferred by the Yash Raj Films Pvt. Ltd. ("YRF") before the Supreme Court against the NCDRCs order which had found a 'deficiency of services' on the part of YRF for not including the 'Jabra Fan' song in the movie 'Fan' despite being shown in the trailer and directed YRF to pay compensation of Rs. 15,000/- to the complainant. 

Observing that the promotional trailer does not create any kind of right of claim with respect to the content of the movie, the Court clarified that the payment of consideration to purchase a movie ticket is to enable the viewer to only watch the movie.

"This transaction is unconnected to the promotional trailer, which by itself does not create any kind of right of claim with respect to the content of the movie.", the court said.

The Court tested the allegations of the complainant on the parameters of the deficiency of services mentioned under Section 2(1)(g) of the Consumer Protection Act, 1986 where deficiency is when there is a fault, imperfection, shortcoming, or inadequacy in the quality, nature, and manner of performance that is required to be maintained either in terms of law or in terms of a contract.

The Court held that there's no deficiency in service because what was alleged in the complaint arose out of the complainant's own expectation that the song would be a part of the movie.

"The fallacy in this argument is in assuming that a promotional trailer is an offer or a promise. It is under this misplaced assumption that the complainant has assumed that the subsequent formation of a contract to watch the movie is not in compliance with the promise allegedly made through the promotional trailer.", the Court observed.

 The contents of the promotional trailer not shown in the movie don't amount to 'Unfair Trade Practice'

The Court underscored that to constitute an 'unfair trade practice' under Section 2(1)(r)(1) of the Consumer Protection Act 1986, the statements are of the nature which is wilfully made knowingly to be false, or made recklessly without an honest belief in its truth, and made with the purpose to mislead or deceive to constitute a false or misleading representation. In addition, a failure to disclose a material fact when a duty to disclose that fact has arisen will also constitute a false or misleading representation.

Testing the parameters of 'unfair trade practice' in the present case, the court held that no case of 'unfair trade practice' is found as the content of the trailer doesn't make any false statement or intend to mislead the viewers. 

"The ingredients of 'unfair trade practice' under Section 2(1)(r)(1) 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 clause (1) of Section 2(1)(r) that pertains to unfair trade practice in the promotion of goods and services. Nor does it make any false statement or intend to mislead the viewers. Furthermore, the burden is on the complainant to produce cogent evidence that proves unfair trade practice but nothing has been brought on record in the present case to show the same. Therefore, no case for unfair trade practice is made out in the present case.", the court observed.

"There is another important distinction that we must bear in mind, i.e., the judicial precedents on this point do not relate to transactions of service relating to art. Services involving art necessarily involve the freedom and discretion of the service provider in their presentation. This is necessary and compelling by the very nature of such services. The variations are substantial, and rightly so. Therefore, the standard by which a court of law judges the representation, followed by the service, must be different and must account for the creative element involved in such transactions.", the court added.

Based on the above premise, the Supreme Court allowed the appeal and set aside the findings of the impugned order that there is a deficiency of service and unfair trade practice.

Counsels For Petitioner(s) Mr. Deepak Biswas, Adv. Mr. Abhishek Malhotra, Adv. Ms. Subhalaxmi Sen, Adv. Mr. Raghav Shukla, Adv. Ms. Sonali Jain, AOR

Counsels For Respondent(s) Mr. Mohd. Zahid Hussain, AOR Ms. Mumtaz Javed Shaikh, Adv. Mr. Zeeshan Zaidi, Adv. Ms. Aishwarya Bhati, A.S.G. Ms. Ruchi Kohli, Adv. Mr. Vatsal Joshi, Adv. Ms. Ruchi Gour Narula, Adv. Mr. Ishaan Sharma, Adv. Mr. Vedansh Anand, Adv. Mr. Navanjay Mahapatra, Adv. Mr. Shashwat Parihar, Adv. Mr. Amrish Kumar, AOR

Case Title: YASH RAJ FILMS PRIVATE LIMITED vs. AFREEN FATIMA ZAIDI

Citation : 2024 LiveLaw (SC) 319

Click here to read/download the judgment