While hearing a relatively distinct case, the Supreme Court of India ruled 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.
Division bench of Justices PS Narsimha and Aravind Kumar were hearing an appeal filed by the well known movie production house, Yash Raj films. The appeal was against an order by the NCDRC upholding State Commission's order granting compensation to the complainant.
Background
According to the complainant, who is a teacher from Aurangabad, her children are big fans of Shahrukh Khan and after watching the promos of the song 'Jabra Fan' they decided to go watch the movie 'Fan' to watch the song on the silver screen. She had given two options to both her children, one was 'Jungle Book' and the second one was 'Fan'. Out of the two options, they preferred the latter one because of the song 'Jabra Fan'.
The complainant alleges that, she accordingly convinced her mother-in-law, father-in-law, sister and brother-in-law for the movie by saying that, the film is looking great and the song 'Jabra Fan', is also there for the entertainment which will look great on the silver screen. She bought seven tickets of first day first show on April 15, 2016 which cost her Rs. 1050 in total. However, to her disappointment, she found that the song was not part of the movie. She alleges that due to this, she felt cheated and deceived by the appellants and has undergone "mental agony". She filed a complaint with the District Consumer Redressal Forum. In view of the above, she claimed Rs. 60,550 as damages.
In a short order dated April 29, 2016, the District Consumer Redressal Forum dismissed the complaint on the ground that in the said case there is no relationship of consumer and service provider.
Against the above order, the complainant filed an appeal before the State Commission, which was allowed by order dated September 22, 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.
Following this, the appellant carried the matter to the National Consumer Disputes Redressal Commission. 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, NCDRC said.
Judgment
At the very outset, the bench observed –
" A song, dialogue, or a short visual in a promotional trailer may be seen in the context of the multifarious uses of advertisements. These could be used to popularise or to create a buzz about the release of the film, rather than to purely represent information about the contents of the film. Viewers could associate these with the film and may be interested or encouraged to watch the film. However, the kind of right or liability a promotional trailer creates would entirely depend on the civil and statutory legal regime. The complainant has invoked the jurisdiction of the consumer court and therefore, it is necessary to analyse the issues in view of the provisions of the Consumer Protection Act, 1986."
Justice Narsimha noted that it is evident from the complaint that the alleged deficiency arises out of the complainant's own expectation that the song would be a part of the movie. It is assumed that there is deficiency of service as the movie did not contain the song. He said-
"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. We will explain this in terms of the law of
contracts.
The essential element of an 'offer' or 'proposal'
for the formation of a contract has not been satisfied in the
present case. A person makes an offer or 'proposal' when he
signifies his willingness to do something with a view to obtain the
assent of another person. When the other person signifies his
assent, the proposal gets accepted and becomes a 'promise'.
A proposal is therefore a prerequisite to a 'promise' and a
'contract'."
Finally, Court held that 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 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 by itself does not create any kind of right of claim with respect to the content of the movie."
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