And that's the recipient's definition. David Berlind at ZDNet writes about how Expedia is digging in its heels and insisting that their unwanted email really isn't spam, so it's okay:
Recently, I received an e-mail that told me my $200 coupon with Expedia was about to expire. What coupon that was and how I became entitled to it, I had no idea. My first post regarding this e-mail notification simply had to do with my opinion that the e-mail was incredibly misleading. At first, you're led to believe that that the $200 coupon can be applied to any travel. You're even provided with links to four destinations as "inspiration" for ways in which to apply the coupon. It isn't until later in the email, after you carefully study all the text, that the coupon turns out to only be good for those four destinations and that it only applies to trips that are five days or longer in length. Given the language and the open ended search form near the top of the e-mail into which any travel destination can be entered and searched, I found the e-mail to be incredibly misleading. In fact, I considered it to be a bait and switch.
Then, in response to that piece, a reader asked the obvious question that, until then, had completely escaped me. What gave Expedia the right to send me that promotional e-mail in the first place? The reader, who himself felt he was being spammed by Expedia, suggested the same had just happened to me. The reader suggested that I double check the e-mail preferences in my Expedia account. Sure enough, I had opted out of every possible promotional e-mail Expedia could have to offer. Yet, somehow, not only did I get this promotional e-mail from Expedia, there was no way to opt-out from future ones like it (as required by the Can Spam Act). So what the heck is going on here. How is Expedia able to get away with it?
That's a great question, and Berlind got a response from Expedia: an email trying to get you to use a coupon to buy something is not a promotional email, it's a transactional email, which is treated differently by the CAN-SPAM Act. If you thought that, for example, an email confirming a reservation would be transactional, but one selling something would be promotional, then you're not using Expedia's rather interesting definition of a "transaction."
According to Sylvana at Expedia whose title is Customer Service Lead and to whom Expedia's public relations department referred me, here's how. On July 8, 2006, I booked a rental car in San Francisco through Expedia. It was actually my first transaction with Expedia since 2004. So, I'm not a regular customer by any stretch of the imagination. Furthermore, Sylvana confided that when the Expedia site is used to do nothing but book a rental car, it doesn't even take a cut out of the transaction. It's simply a pass-thru. Nevertheless, as a result of using Expedia's site to book something before December 31, 2006, I qualified for the incredibly limited $200 coupon.
According to Sylvana, this qualification was not conditional upon my acceptance. Whether Expedia customers wanted them or not, the $200 coupons are automatically issued and deposited into qualifying customers' accounts...
As of Sept 27th, whether I wanted it there or not, I now had very limited $200 travel coupon in my account that, in its own mind, Expedia was treating as a part of my transaction involving the car rental. (emphasis added)
Do you think that's nonsense? I do, and I hope that the FTC clears it up by fining Expedia.
But even if this is deemed legal, it doesn't matter from a marketing point of view, because it's immensely stupid. Maybe Expedia can come up with a tortured rationale for exemption their promotional email from the law, but if you're an Expedia customer getting messages you didn't ask for and which you don't want, that doesn't matter: Expedia is a spammer in the customer's mind, and since it's the customer deciding where to spend the money, that judgment is more important than anything the FTC can come up with.
This kind of lawyer-driven marketing misses the point of email: building a good ongoing relationship with customers that leads to more business. A marketer who thinks that finding ways to annoy customers while evading legal sanctions is a smart approach should consider a career change.
Because those customers will be considering some changes of their own - to travel sites that actually respect their email preferences.
If the only thing keeping you from being a spammer is a legal loophole, you're out of luck. Instead of deploying your legal department on the issue, try asking your customers: Is the email you get from us what you expected? Is it useful? Is it desired?
If you don't like the answers to those questions, stop talking to the lawyers and go back to being a marketer.