The commissioner sought a temporary injunction ordering X, formerly Twitter, to block 65 websites containing a clip of Bishop Mar Mari Emmanuel being attacked until Justice Geoffrey Kennett determined whether the social media platform breached any laws.
An order was made and extended in April but Justice Kennett on Monday in the Federal Court rejected an application to extend the injunction further.
The Australian shared a link to an article reporting that news using its account on X, formerly Twitter, with a caption: "Elon Musk 1, eSafety commissioner nil".
Mr Musk, who purchased Twitter in 2022, responded he was "not trying to win anything".
Not trying to win anything. I just don't think we should be suppressing Australian's rights to free speech.— Elon Musk (@elonmusk) May 13, 2024
"I just don't think we should be suppressing Australian's (sic) rights to free speech," Mr Musk wrote.
But Attorney-General Mark Dreyfus said the government expected companies operating in Australia to comply with local laws and monitor what was broadcast on their platforms.
"We don't want to see offensive material getting wide currency," he said.
The commissioner is waiting to learn why the injunction was not extended as it tries to force the social media platform to hide videos of the stabbing during a live-streamed sermon at a western Sydney church in April.
Justice Kennett's reasons for rejecting the extension are yet to be published but the injunction lapses at 5pm on Monday.
The commissioner had the power to order the removal of videos advocating terrorism or showing gratuitous, exploitative violence but the clip did not fall into either category, X's barrister Bret Walker SC told the court on Friday.
Facebook and Instagram parent Meta did what it was told but eSafety said X didn't comply. (Joel Carrett/AAP PHOTOS)
X had already taken all reasonable steps it could to block the clip from Australian viewers short of removing the footage from everyone globally, he argued.
The commissioner's barrister Tim Begbie KC said X's policies permitted it to take posts down globally and it did so when it suited.
"Global removal is reasonable when X does it because X wants to do it but it becomes unreasonable when X is told to do it by the laws of Australia," he said, characterising the company's position.
The commissioner ordered X to remove videos of the attack on the bishop, who survived.
While the company blocked Australian users from viewing the clip, the court was told virtual private networks allowed some to circumvent geographic restrictions and view the material.
The stabbing was declared a terrorist incident and several teenagers have since faced court charged with related offences, including the alleged attacker.
X was ordered to remove videos of Bishop Mar Mari Emmanuel being stabbed during a sermon. (HANDOUT/Christ of Good Shepherd Church)
Others have been charged over their alleged involvement in a subsequent riot outside the church.
The Free Speech Union of Australia, which is campaigning to abolish laws governing many of the commissioner's powers, expressed concerns about taxpayers continuing to fund "this unfortunate endeavour".
"The application for this injunction should have never been brought," co-director Reuben Kirkham said.
In a statement, the eSafety Commissioner noted the court outcome and pointed to the matter's next listing on Wednesday.
X closed its Australian office and later fired all of its local staff after Mr Musk took over the company in 2022.
