What we have here is an American attempt to avoid having foreign positions (vis a vis free speech)imposed on us. If I read you correctly, you are referring to Dr Ehrenfeld’s ‘position’ regarding the funding of terrorism (which was published in NY, by the way.) That is the content of one instance of expression. And that is where I think you miss the point. It is not the content, but the expression itself that is at issue. Specifically that an American can express herself in accordance with American free speech protections and, while those offended can bring suit abroad if they wish, a judgment against her (so obtained) cannot be enforced in NY.

I do share your exasperation at the title of the Act. Why not simply “Libel Protection Act”? The whole buzzword/bandwagon nature of this trend to shove nonsense down eveyones throat by hiding behind the word ‘terrorism’ is, well, the last refuge of too many scoundrels today.

As regards the inclusion of downloading (and, in general, of contracts concluded and/or performed online) in the material scope of application of Art. 6, the issue was largely debated at the time of the conversion of the Brussels Convention into Reg. 44/2001 (the Commission organized a public hearing, the Hague Conference a number of meetings and round tables, etc.). I am not so updated on the matter, but I feel that this aspect gained much less attention in the procedure that has led to the Rome I Reg., since the basic decision was to follow the approach of art. 15(1)(c) of Brussels I Reg.
At a first look, I do not think that the exception provided by Art. 6(4)(a) would cover such kind of e-contracts.
In addition to articles and books that have been written on the matter in the last decade, I would like to point out a paper written by Peter Lenda (Norwegian Research Center for Computers and Law) in the frame of the “E-CLIP” Project (Electronic Commerce Legal Issues Platform): “The choice-of-law in European electronic commerce contracts”.
It can be found, along with other works on the same topic (such as the one by M. Foss and L.A. Bygrave), on the project’s site http://www.eclip.org (Research Papers/Private International Law).

p.s. in the latest round-up of PIL articles compiled by Martin George, see also, on Art. 15(1)(c) Brussels I reg., the recent work by Y. Farah, ‘Allocation of jurisdiction and the internet in EU law’ (2008) 33 European Law Review 257 - 270.

Second: is there a document or article where the Commsision or an expert explains more about the preference for choice of law on consumercontracts? Depecage was a hot item during the greenbookperiod; a lot of people didn’nt want that to continue in ROME I. The commission had the guts to skip the choice of law with consumercontract. The Ep amended this and put it back in. The only explanation I can find, is the argument that its unfair for the en bad for the internal market. In mine opinion its a huge difference. It’s hard to believe that the commission agreed as easiliy as it look likes.

Third: what do you think of the first exception of article 6 paragraph 4 (a contract for the supply of services where the services are to be supplied to the consumer exclusively in a country other than that in which he has his habitualresidence)

This will undermine legal certainty as some digital processes as dwonloading are hard to define. It’s hard to qualify terms like downloading. It could be qualified as supply of service but also as supply of goods. One ay or the other downloading should be protected.

I am not aware of anybody raising the issue of coercion to the annullement, so my guess is that there was none. Indeed, the French Minister of Justice Rachida Dati (herself the daughter of North African emmigrants) argued that the proceedings were actually protective of the wife, as they were giving her a way out of that family in law. But she was quite isolated on the French scene, and was eventually forced to lodge an appeal against the judgment by President Sarkozy.

California Supreme Court ruling S147999