Consumer Protection Act, 1986 –Legal implications of a promotional trailer, popularly known as a ‘promo’, or a teaser that is circulated before the release of a movie- Whether 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? 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.- 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- 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 practice17 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. (Para 1,14,18)
Constitution of India, 1950; Article 19- Commercial speech, which includes advertisements, is protected through freedom of speech under Article 19(1)(a) of the Constitution, subject to the 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 the State.5 Subject to these restrictions, the producer/ advertiser has the freedom to creatively and artistically promote his goods and services- Subject to these restrictions, the producer/ advertiser has the freedom to creatively and artistically promote his goods and services. (Para 5)
Consumer Protection Act, 1986 ; Section 2(1)(o)- Any person watching a movie after remitting the necessary consideration becomes a consumer of service. The service in this case is that of entertainment. (Para 9)
Contract Law- 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’. (Para 13)
Consumer Protection Act, 1986 ; Section 2(1)(r)– False statement that misleads the buyer is essential for an ‘unfair trade practice’. A false representation is one that is false in substance and in fact, and the test by which the representation must be judged is to see whether the discrepancy between the represented fact and the actual fact would be considered material by a reasonable person. Further, “statements of the nature which are wilfully made knowingly false, or made recklessly without honest belief in its truth, and made with the purpose to mislead or deceive will definitely 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.” Therefore, only substantive and material discrepancies are covered under ‘unfair trade practice’-. 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.(Para 17-19)