Colouring outside the lines: a regulatory shaming framework for black, red, white, and green lists

Regulation by shaming is gaining momentum across various jurisdictions worldwide. One growing approach involves creating and publicising naming and shaming lists, such as blacklists, red lists, and other types of lists. Companies are named, scored, and ranked by government agencies within these lists based on their performance, characteristics, and behaviour. However, despite their distinct goal of targeting corporate reputation and prompting stakeholder action, legal actors and policymakers frequently frame them as nothing more than transparency or disclosure. Drawing primarily on examples from Israeli regulation, the article advocates for conceptualising this regulatory tool as shaming lists, featuring unique mechanisms, objectives, involved actors, and justifications. To advance this argument, the article delineates the contours of regulatory shaming lists, particularly in comparison to regulatory transparency and regulatory disclosure frameworks. The article then points out the legal and regulatory risks of wrongly conceptualising regulatory shaming lists and argues that policymakers and legal actors should instead begin developing and applying a more suitable framework rooted in regulatory shaming theory. By focusing on this burgeoning approach of shaming lists, the article aims to make a novel contribution to the theory and practice of governmental information-sharing tools in the regulatory age.