'Transactional' vs. 'Unsolicited commercial': Ducking anti-spam legislation isn't the point

After two posts yesterday about whether Expedia is using misleading copy in its promotions, and then about whether a coupon offer via e-mail legally constitutes spamming (and whether the FTC should act: so far you're saying "yes"), the e-mailers and blogosphere are starting to chime in on the issue.

As a reminder, after a ZDNet reader spotted my first posted and suspected I had been spammed the same way he felt he had been, I checked my e-mail preferences on Expedia.com and discovered that I had indeed opted-out of all promotion e-mails. But, in a semantic slight-of-hand, Expedia referred to the coupon offer not as a promotional e-mail (even though it was one in my eyes), but rather a transactional one. According to the Can Spam Act, transactional emails are exempt from the legislation's jurisdiction. So, just because an email sender says an email is transactional, does that make it so? Perhaps the most prescient piece of wisdom comes from Mark Brownlow at Email Marketing Reports who wrote:

The issue seems to be that Expedia considers a coupon reminder to be transactional rather than commercial email......For me, the actual semantics and legalities of the email are fairly irrelevant. Permission issues are not just about keeping the right side of anti-spam laws....No apologies for saying this a thousand times, but recipients don't label emails based on the legal definition of spam....You want to be seen as a spammer? Then send irrelevant commercial email that people don't want. You can call it what you like, but if the recipients see it as spam, then all the legal ifs and buts in the world won't help.

That's true. Forget the law for a minute (although, in this case, I do believe the FTC should take action). Customers are an organization's life blood. If you screw with their trust, you might as well just slit your wrists and get it over with.  

In addition, I've now come to learn that I'm not the first to spot the problem and write about it. Stephen Canale of OnlyMyEmail.com noticed the problem last year. In a post titled Expedia.com must think they're special, Canale wrote:

Seems Expedia considers any long since past contact as a "right to spam" and can’t be bothered with opt-out links or other such foolishness.....While many recipients no doubt like to receive their promotional emails, Expedia must figure the rest of us have no say in the matter and simply have to accept messages from usmail@expediamail.com since they presumably do have many subscribers.

Canale's post definitely reflects my findings: a promotional email with misleading copy labeled as a transactional email with no way to opt-out.

So, why should the FTC act? The line on what is and what isn't transactional needs to be drawn somewhere. Otherwise, spammers will have a field day with this. The next thing you know, not one of them will be within the reach of the Can Spam Act because they include a reference to a coupon in their emails and declare those emails to be transactional in some way.