Verdict

In the Supreme Court of India, Civil Appellate jurisdiction 
Civil Appeal No. 4422 of 2024

Yash Raj Films Private Limited …… Appellant(s)
Vs
Afreen Fatima Zaidi & Anr …… Respondent(s)

On 22nd April 2024, the Honourable Supreme Court set aside an order of the National Consumer Disputes Redressal Commission in a case pertaining to the rights of a complainant under the Consumer Protection Act giving clarity on the definitions of ‘service’, ‘deficiency of service’ and ‘unfair trade practice’ in the Act.

Facts

1. Ms. Afreen Fatima Haidi (‘Afreen’) watched the promotional trailer of the Yash Raj Films(‘YRF’) produced 2016 film “Fan” that showed a popular song. Attracted by the song, the entire family watched the film in a theatre after duly buying the tickets.
2. Afreen was extremely disappointed and agonised to find the song missing in the entire film. She filed a complaint with the District Consumer Disputes Redressal Forum against the Appellant for ‘deficiency of service’, under the Consumer Protection Act, 1986 (‘CP Act’).
3. The District Consumer Disputes Redressal Forum dismissed the complaint on the ground of there being no relationship between consumer and provider. Afreen then approached the State Commission for redressal. The State Commission held that there was indeed a deficiency in service on the part of YRF and awarded Rs.10,000 towards mental harassment and Rs.5,000 towards cost of complaint.
4. YRF challenged the order of the State Commission in the National Consumer Disputes Redressal Commission(‘NCDRC’). The NCDRC held that a song shown in the promotional trailer is an implied promise that will have the effect of luring the audience to watch the film and hence the absence of the song in the film amounts to ‘deficiency of service’. The NCDRC also held that the practice of showing a song in the promotional trailer but not including it in the film is an ‘unfair trade practice’. Aggrieved by the order of the NCDRC, YRF approached the Honourable Supreme Court of India.

Issue

Is it an unfair trade practice if the contents of the promotional trailer are not shown in the movie? Whether the absence in the film of a song shown in the trailer amounts to a ‘deficiency of service’ and ‘unfair trade practice’.

Analysis & Judgement

The Honourable Supreme Court set out to first establish clarity on the relevance of the key provisions in the Consumer Protection Act of 1986 to the present case, as follows:

1. The trailer of a film is an advertisement which essentially is a commercial free speech that enjoys protection under Article 19 (1) (a) subject to reasonable restrictions under Article 19 (2). Besides being a disseminator of information about the features and specialities of a product or service, an advertisement is also an expression of artistic creativity whose purpose is to attract potential consumers with visuals, jingles or taglines.
2. A song, dialogue or short visual in a film trailer is like a creative advertisement. The right or liability that a promotional film trailer can create depends entirely on the legal and statutory provisions of the Act under which redressal is sought, in this case, the Consumer Protection Act, 1986.
3. Under Section 2 (1) (d) of Consumer Protection Act, a ‘consumer’ is one who buys a product or hires a service for consumption by self or by others, but not for commercial use. A ‘consumer’ has the right to make a complaint of ‘deficiency of service’ or ‘unfair trade practice’, under Section 2 (1) (c).
4. Under Section 2 (1) (o) of the CP Act, “service’ is that which is made available to potential users. It covers provision of facilities in a wide variety of commercial activities that includes entertainment but excludes service rendered free of charge or rendered under a contract of personal service. Once he remits the consideration, a film viewer becomes a consumer of the ‘service’ of entertainment.
5. While considering judgments in cases such as Arulmighu Dhandayudhapaniswamy Thirukoil, Palani, Tamil Nadu v. Deptt. of Post Offices, (2011) 13 SCC 220, para 18, the SC observed that under Section 2 (1) (g) of CP Act, ‘deficiency’ is defined as a fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance that needs to be maintained under the law prevailing at the time or as has been promised under the particular contract for the service.

1. Ms. Haidi’s complaint of ‘deficiency’ arises basically out of her assumption that the film’s trailer is a ‘promise’ by the film maker for the song shown in the trailer to be part of the film. It is only on this assumption that Ms. Haidi construed the absence of the song in the film as a ‘deficiency’
2. Only when the ‘proposal’ of a person to provide or do something is expressly ‘accepted’ by a potential user does it become a ‘promise’. A proposal is a pre-requisite for a ‘promise’. A set of promises and considerations lead to a legally valid agreement or contract.
3. A promotional trailer, by its nature of being a unilateral activity, cannot be construed as a ‘proposal’. It is completely independent from the transaction of purchase of a ticket by viewer to watch the film. Since there is no ‘proposal’ in the first place, there does not exist a ‘promise’ and consequently there exists no contract between Ms. Haidi and YRF for the song shown in the trailer to be included in the film. As such, there are no grounds for ‘deficiency’ of service.
4. Section 2 (1) (r) of CP Act defines ‘unfair trade practice’ as a practice which, for the sale of any product or service, adopts unfair methods or deceptive practices such as: making false statements on the standard, quality or grade of the product/service; false claims pertaining to approvals, sponsorship, performance, characteristics, etc. Only when the discrepancy between the facts and represented claims could be deemed as substantive or material by a reasonable person can ‘unfair trade practice’ arise. The promotional trailer does not come under any of these provisions of ‘unfair trade practice’.
5. The burden of establishing ‘unfair trade practice’ with cogent evidence lies on the complainant. In this case, Ms. Haidi could not produce any such evidence.
6. Importantly, judicial precedents of ‘unfair trade practice’ do not apply to services relating to arts. By their very nature of creativity that requires a certain degree of freedom and discretion, material and substantive discrepancies are bound to occur in artistic transactions and such discrepancies cannot be subjected to strict judicial interpretations.

Verdict  

Based on the above facts, the Honourable Supreme Court of India held that if the content of the promotional trailer is not shown in a movie, it does not amount to ‘deficiency in service’ or an ‘unfair trade practice’. Accordingly, the Apex Court set aside the order of the NCDRC and allowed the appeal of YRF.

For full text of Judgment:
https://www.freelaw.in/legalarticles/Supreme-Selections-Top-Supreme-Court-%20Judgments-of-April-2024#:~:text=Supreme%20Court%20Decision%3A%20On%20April,with%20Voter%20Verifiable%20Paper%20Audit