R. v. Smith, 2012 ONCA 892 deals with a specially nasty obscenity case. In so doing the Court made a ruling that meta-tags, banners and links on an Internet website are relevant in considering the overall context of the site:
[14] The meta-tags, banners, and links to other websites were admitted at the first trial. In Smith I, this court affirmed the trial judge's ruling on this issue, saying at para. 62:
The trial judge did not err in admitting this evidence. The meta-tags, banners and links on an Internet website are analogous to the dustcover and preface to a book: they inform the viewer about the content of the publication and provide context for the work.
[15] The same evidence was led at the second trial, and the defence made no objection at that time. Accordingly, the trial judge did not make a formal ruling on the admission of this evidence.
[16] On appeal, the appellant asserts that the ruling in Smith I has been overtaken by the subsequent decision of the Supreme Court of Canada in Crookes v. Newton, [2011] 3 S.C.R. 269 ("Crookes"). Based on that decision, he argues, the banners, links and meta-tags were not relevant to the content of the appellant's website and should not have been admitted.
[17] I do not accept this submission. First, Crookes says nothing about meta-tags and banners. Second, with respect to hyperlinks, Crookes and this case are quite different. Crookes was a defamation case where the issue was whether creating a hyperlink to a third party's defamatory work is the type of act that can constitute 'publishing' that work. The court's focus was on the sufficiency of the act for the purposes of defamation; its comment, at para. 30, that "a hyperlink, by itself, is content-neutral" must be understood with that in mind. In this case, the hyperlinks were adduced only as context for the content that the appellant published on his own website.
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