Promotional trailers are unilateral and do not qualify as offers eliciting acceptance: Supreme Court

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While hearing the Yash Raj Film Private Limited vs. Afreen Fatima Zaidi case on April 22, 2024, the Supreme Court (SC) held 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.” The bench constituting Justice PS Narasimha and Justice Aravind Kumar was hearing a plea filed by the Yash Raj Films Private Limited (YRF) challenging the order of the NCDRC (National Consumer Disputes Redressal Commission) that found ‘deficiency of services’ on the part of YRF as the song ‘Jabra Fan’ was not included in the movie ‘Fan’ despite showing it in the trailer and directed the YRF to pay Rs. 15,000 compensation to the complainant (a teacher in a school in Aurangabad). 

The bench addressed three questions “What are the legal implications of a promotional trailer, popularly known as a ‘promo’, or a teaser that is circulated before the release of a movie?” “Does it create any contractual relationship or obligations akin to it?” and Is it an unfair trade practice if the contents of the promotional trailer are not shown in the movie?” During the proceedings, the SC observed, “An advertisement is not only informational but also a means of creative and artistic expression. It can allure, entice, capture the attention, and pique the interest of consumers through features that may not directly relate to information about the product or service. Advertisements build brand loyalty and reputation, and promote an image and ethos of not only the product being advertised but also the manufacturer/ service provider.” 

The bench further 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 popularize 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.” It also said that 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 amounts to a deficiency in the service. 

The SC said, “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.” It pointed out that the burden to prove unfair trade practice was on the complainant (teacher) 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. The top court set aside the findings of the impugned order that ‘there is deficiency of service and unfair trade practice.’