About the Author: Vanshika Arora is a 5th Year Law Student pursuing B.B.A.LL.B from Symbiosis Law School, NOIDA. She has a keen interest in the field of Intellectual Property Law and Media & Entertainment Law.
Recently, the Supreme Court of India sparked the conversation regarding the aspect of film promos and the extent of their inclusion in the film when they issued a notice on a special leave petition filed by Yash Raj Films Pvt. Ltd. (“YRF”), challenging the order of the National Consumer Disputes Redressal Commission (“NCDRC”) directing YRF to pay Rs. 10,000/- as compensation to a consumer who felt deceived when the song ‘Jabra Fan’ was excluded from the Shah Rukh Khan-starrer 2016 film, ‘Fan’. The Supreme Court has granted an interim stay on the operation of the NCRDC order.
Background of the Case
The consumer, Afreen Fatima Zaidi, filed a complaint at the District Consumer Forum wherein she claimed that she and her family felt cheated when the song was excluded from the film even though it was actively shown in the promos and trailers. Due to this, her children did not eat food on that night when they watched the film and ended up in a hospital, due to spike in their acidity levels. Nevertheless, her complaint was rejected by the District Forum.
Accordingly, she filed an appeal at the State Commission of Maharashtra and was awarded Rs. 10,000 as compensation and Rs. 5,000 as litigation cost, both of which were to be borne by YRF. The NCDRC rejected the revision petition filed by the YRF and held that including the song in promos when it was absent in the movie was an act to deceive the consumers and amounted to unfair trade practice, under Section 2(1)(r) of the erstwhile Consumer Protection Act, 1986.[i] YRF then filed the SLP at the Supreme Court.
Contention of the Parties
In its appeal to the Supreme Court, YRF has based their case on three primary contentions. Firstly, they claim to not be the service provider in the present case as there is no privity of contract between them and the consumer. The business arrangement of YRF and the Exhibitor (herein, the movie theatre) is different from the agreement between the consumer and the Exhibitor. Secondly, they claim that the song was meant only for promotional purposes and they had informed prior of its absence from the movie. Thirdly, the inclusion of a song or a scene is a creative process and a prerogative solely of the makers.
The consumer claimed to have suffered deficiency in service under Section 2(1)(g) of the Consumer Protection Act, 1986 on the part of YRF when they failed to include the song which they proactively promoted as a part of the movie.[ii] Further, this act of excluding the song was an unfair trade practice on the part of YRF.
Analysis of the Contentions
According to my humble opinion, the decision rendered by the NCDRC is inaccurate to a certain extent and has left scope for revision. This is so because they erred in rightfully assessing the contentions of both the parties. The approach was restricted to traditional definitions and not the changes that have happened over the time as regards the film promotions and their viewer experience.
NCDRC did not accept the common practice followed by filmmakers in promoting their films by using such songs which are eventually not featured in the film. Further, they erred to take into account that the two teasers of the film as well as the official trailer do not feature the song either. This was a clear implied disclaimer on the part of the makers and their intent to not showcase the song in the film. Further, it was clarified time and again by the makers that this song will not be showcased in the film.
- Not a deficient act on part of YRF
As regards the claim of no form of deficiency on the part of YRF, it is imperative to consider the essentials of deficiency as defined in the Consumer Protection Act, 1986, which governs the present matter. Section 2(1)(g) defines deficiency as any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
In order to establish a service as deficient, it is the duty of consumer to prove the deficiency beyond reasonable doubt. However, in the present case, these elements are not satisfied beyond reasonable doubt. As a film producer, the job of YRF was to ensure proper working of the film project and the film’s making along with the pre and post production work. This was efficiently carried out by the production house. Their promotional techniques did not in any sense turn out to be inadequate in terms of statutory quality, nature and manner of performance.
- Not satisfying the elements of unfair trade practice
Further, the consumer contended that the act was excluding the song amounted to unfair trade practice. Consumer Protection Act, 1986 defines unfair trade practice as a trade practice which for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice. The exclusion of the song from the movie cannot be termed as an unfair or deceptive promotional technique as it was promoted as a simple blurb with clear and explicit stand that it is absent from the movie.
- YRF cannot be considered as a service provider
Before establishing the relationship of a ‘consumer’ and a ‘service provider’, it is important to revisit their definitions. Section 2(d) of Consumer Protection Act, 1986 defines consumer as any person who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who ‘hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes. Further, the Act does not explicitly define a ‘service provider’.[iii] However, the 2019 Act defines electronic service provider and product service provider.
It is also settled that in order to ascertain two entities as consumer and service provider, there must exist a service agreement between them.[iv] However, in the present case, there exists two separate services and service agreement. First being the service agreement between Film Producer and Exhibitor and the second being the service agreement between the Exhibitor and the consumer. When a consumer purchases a movie ticket by paying the necessary consideration, they enter into an agreement with the Exhibitor. Accordingly, it becomes the duty of the Exhibitor to provide them due services. The Exhibitor is a separate entity and cannot be considered as an intermediary as it is him who directly provides the service of entertainment by exhibition to the viewers.[v] Therefore, the scope of service provider shall be extended only to include the exhibitor and not the film producer, herein, YRF.
- Prudent marketing strategy
In the present times, with abundant modes of entertainment available with the audiences, filmmakers have to think of extraordinary strategies for promoting their films to increase the audience turnout. This has led to development of the trend of using promotional songs. This concept is a fairly old practice in the Hindi film industry. These songs usually feature a big movie star who is at times not a part of the movie, for example, Amitabh Bachchan featured in Rohit Shetty’s ‘Bol Bachchan’ title track. Further, sometimes, these kinds of songs are not a part of the movie, for example, Sanjay Leela Bhansali’s ‘Black’ had a song composed for the movie but was not a part of the narrative.
This promotional technique is only a mode of attracting more and more audience members to the theatres. Further, this technique or any such marketing technique adopted by the film producers is not governed under any of the existing laws in our country. This is to ensure freedom of speech and expression coupled with creative freedom. The basic compliances that are required to be fulfilled by the film producers are as per Cinematograph Act 1952, Cable Television Networks (Regulations) Act 1995, Information Technology Act 2000 and other allied Rules.
In the present case, YRF complied with the necessary and applicable laws to ensure that their promotional strategies and the movie satisfy the legal requirements. The certification, film teasers and trailers were all transmitted as per the appropriate guidelines. When all the stipulated requirements are duly fulfilled, the consumer or the law cannot dictate a filmmaker to make creative changes in their work. This would amount to infringement of the fundamental rights of the filmmakers as well as distort the process. When one such consumer’s demand is fulfilled, it will lead to more and maybe frivolous demands, leading to tampering of the creative work.
With this case, the Supreme Court of India has the opportunity to set a clear precedent as to whether the film producers come under the ambit of service providers as mentioned in the Consumer Protection Acts. Further, the present case is also important in determining the responsibility on the part of the filmmakers in promoting their films in such a way, so that the audience does not feel deceived when they actually go and watch the movie. With the surge in the aggressive film promotional tactics being opted by filmmakers, it is pertinent to draw a line to fix the extent of their gimmicks. Even though they have a right to freedom of speech and expression which allows them to promote their film, as they may like. However, certain reasonable restrictions should be implemented to ensure that the consumers and their rights are not dishonored, especially in a country like India where film industry plays a significantly major role in providing entertainment as a service. These restrictions can be in the form of a disclaimer portrayed during the film promos which clarify the nature of the promotional song and its absence or the performing actor’s absence from the movie. The consumer should be well aware of these elements before they spend their valuable money and time.
[i] § 2(1)(r), Consumer Protection Act, No. 68 of 1986, India Code (2019).
[ii] § 2(1)(g), Consumer Protection Act, No. 68 of 1986, India Code (2019).
[iii] § 2(1)(d), Consumer Protection Act, No. 68 of 1986, India Code (2019).
[iv] Faqir Chand Gulati v. Uppal Industries P. Ltd. (2008) 10 SCC 345
[v] State of W.B. v. Purvi Communication (P) Ltd., (2005) 3 SCC 711.
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