An advertisement is only spam if it's unsolicited. If you forget to uncheck the box "yes send me promotional offers and deals" when signing up it's not spam according to that definition.
If you're making people opt-out and setting them up to "forget" to do so, then you are spamming them, but even under that definition, I'd estimate that over 99% of what I'm calling spam still qualifies. A large amount of it is from businesses I've never interacted with, so obviously unsolicited.
Isnt it against GDPR and they could get hit with large fines in Europe for every recipient?