Naming and Shaming of Corporate Offenders Research Paper

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Pressure from the social environment of business is a major explanatory factor for corporate compliance. The threat of negative publicity, reputation damage, and social stigma may prevent business offenses or socially irresponsible or unethical business behavior. Therefore, both public and private regulatory actors attempt to activate social control by naming and shaming firms that offend legal or social norms. Exposing corporate misbehavior to the public may trigger stakeholders to impose “reputation sanctions” that largely exceed the impact of legal sanctions, such as fines. Public enforcement authorities therefore increasingly make use of publicity in their enforcement strategies, and disclose names of offenders in an attempt to increase the impact of regulatory sanctions. Similarly, NGOs actively “name and shame” firms involved in socially or environmentally harmful behavior to invoke extralegal pressure in the absence of strong formal legal enforcement. This research paper addresses naming and shaming as a reaction to corporate crime. It discusses its form, the impact on various types of corporate offenders, and its potential and capacity to prevent corporate crime.

Naming And Shaming: Definition And Goals

A distinction should be made between naming offenders and subsequent shaming. Naming offenders can be a neutral activity when public enforcement agencies disclose names of offenders in the context of transparency about their enforcement results. In his standard work “Crime, shame and reintegration,” the Australian criminologist John Braithwaite (1989, p. 100) defines shaming as follows:

Shaming means all social processes of expressing disapproval which have the intention or effect of invoking remorse in the person being shamed and/ or condemnation by others who become aware of the shaming.

Formal punishment can have a shaming effect, but shaming can also occur as an extralegal punishment: We often speak of shaming sanctions or publicity sanctions. The act of shaming can be performed both by the “naming” authority itself, or as a reaction to more neutral public disclosure of offenders by third parties such as media, consumer organizations, interest groups, or other NGOs. Because no clear demarcation line exists between disclosure of offenders’ names and shaming them, it is relevant to conceptualize naming and shaming as continuing scale with more neutral disclosure intended to increase market transparency on the one end and shaming, intended to invoke a negative reaction, on the other end.

A few recent examples:

The European Directive on public access to environmental information obliges member states to publish names of polluting companies in the European Pollutant Emission Register.
In many countries, “scores on the doors” of restaurants show the extent to which the restaurant complies with hygiene standards.
The British Department for Business, Innovation and Skills publicizes names of employers found in breach of minimum wage regulations.
Financial market authorities, such as the US Security Exchange Commission, the British Financial Services Authority, and the Dutch Authority for Financial Markets, publish sanctions against offending financial market firms.
Greenpeace campaigns for “greener electronics” by rating consumer electronics producers on an index of their performance regarding responsible for disposal of electronic waste as well as by shaming firms who fail to adequately prevent waste dumping.
Amnesty International targets Shell for its oil spills in the Niger Delta.

Since naming and shaming comes in many different forms, a variety of goals can be identified. More or less neutral naming of offenders is often associated with the goal of transparency and accountability of regulatory agencies. Many public enforcement agencies systematically disclose offenders’ names systematically in a repository of inspection reports, in a public sanction register, or in generic offenders’ indices, with the aim of informing the public about their output. Enforcement decisions are visible results of market regulation, and their publication is one of the most direct ways of informing the public of the results of supervision. Transparency can also increase the democratic legitimacy and acceptance of supervision; public trust in market supervision may increase when the public and business become aware that bad practices are being addressed. Publication of sanctions may thus also contribute to the legitimacy of supervision through the creation of an image of “tough” enforcement. The purpose may also be to avoid blame in case of a disaster – publication confirms that the enforcement authority was aware of the problem and did not hide information about risks from the public.

In addition to the general purpose of government transparency, naming offenders may serve a more instrumental goal when it serves to repair information asymmetries in markets. Disclosure aims at contributing to the functioning of markets by providing consumers or other stakeholders with information that may be relevant to their choices. In the context of regulatory offenses, the goal is to enable consumers to include risks or unwanted side effects that result from regulatory noncompliance in their decisions.

Shaming adds a normative element to the publication of offenders’ names. It serves to express and invoke public condemnation for the offender and the offense. Therefore, it not only involves the publication of offenders’ names, but adds a negative evaluation, such as a press release announcing a regulatory fine or explaining an offense, or placing offenders on a blacklist. Shaming may also consist of more informal and incidental negative comments by public officials. President Obama’s remark that BP CEO Tony Hayward “wouldn’t be working for me” in the course of the Deepwater oil spill is a recent example. Shaming by NGOs may involve a whole array of advocacy strategies, such as negatively branding a product (“blood diamonds”); targeting a company (Greenpeace’s attacks on Nestle´ for producing Kitkat with palm oil from endangered tropical forests) to addressing the (ir)responsibility of individual CEOs.

How Does Shaming Work?

Again, a distinction should be made between consumer-oriented disclosure of names aiming at increased market transparency and shaming. In the case of disclosure in the context of market regulation, the audience may react to disclosure by avoiding the product or firm (“exit”) or by voicing their concerns and exerting pressure on the company to change (“voice”) (Hirschman 1970). Such a consumer-oriented disclosure policy explicitly or implicitly departs from the rational economic assumption that information allows consumers to protect themselves, instead of being protected by authorities. Moreover, the aggregate market pressure coming from consumers’ individual actions can also result in third-party enforcement when they “punish” offending companies and “reward” firms with a good compliance status. It is because of this last mechanism that disclosure is considered such a powerful regulatory instrument. Fung et al. (2007, p. 6, 51) describe the process that is triggered by publication of offenses as a chain reaction:

Information users perceive and understand newly disclosed information.
They therefore choose safer, healthier, or better-quality goods and services.
Firms perceive and understand users’ changed choices.
They therefore improve practices or products.
That in turn reduces risks or improves services.

Theories about shaming generally identify two working mechanisms of shaming: deterrence and moral education (Braithwaite 1989; Ayres and Braithwaite 1992). Naming and shaming may deter firms from offending, because firms fear reputation damage in addition to the costs of the formal legal sanction. A good reputation pays out in terms of confidence of business partners and investors, consumer trust, and goodwill and support of the community and the political and bureaucratic environment. All these assets are necessary for the continuity and growth of a company (Gunningham et al. 2004).

Publication of a firm’s status as an offender may give rise to negative publicity that may result in reputation damage in the form of loss of clients, employees, business partners, or investors, that add up to the formal costs of sanctions. General deterrence theory has therefore expanded to include the cost of reputation damage in the cost-benefit equation (Williams and Hawkins 1986; Thornton et al. 2005).

Naming offenders may not only increase the cost of sanctions by adding the financial costs of stakeholder reactions, but also by adding nonfinancial reputation damage, such as loss of face, and being shamed in the eyes of colleagues, peers, and relatives. Convicted business people often feel the loss of their status and prestige, and the loss of trust in their authority as corporate executives, as their biggest punishment (Benson 1990). Although impossible to quantify, the threat of being publicly shamed probably deters more than financial reputation damage.

The “moral education” working mechanism in shaming is most prominently outlined in the theory of responsive regulation (Ayres and Braithwaite 1992), the paradigmatic current criminological theory of regulation of corporate compliance. Responsive regulation regards corporate compliance not primarily as a result of fear of legal sanctions, but as a result of a combination of an intrinsic motivation to behave responsibly, and external social pressures, such as fear of negative publicity, reputation damage, and, eventually, fear of legal sanctions. Responsive regulation aims to improve business compliance by connecting with firms’ perceptions of appropriate and responsible behavior (Ayres and Braithwaite 1992). Firms are initially addressed with a cooperative, persuasive strategy, and only when firms do not respond, a regulator may escalate with a variety of interventions. A responsive regulatory approach is therefore visualized as a pyramid. The majority of regulatory action takes place at the bottom of the pyramid, where regulators use a variety of cooperative strategies, and enable third-party action. Pressure for compliance does not primarily come from legal sanctions, but from advocacy groups as watchdogs and informal regulators.

Adverse publicity is important as a catalyst for third-party action. But in addition to its function as a deterrent, shaming is essential in responsive regulation theory to communicate the harmfulness of corporate offenses and to strengthen communities’ shared expectations about appropriate business behavior. Public exposure of the offender underlines the unacceptability of the conduct and is expected to evoke the normative disapproval of the general public or significant peers (Braithwaite 1989; Parker 2006). Adverse publicity may thus contribute to public awareness of the harmfulness of corporate crime and foster normative attitudes against corporate crimes both in the general public and business communities (Braithwaite 1989). Shaming is also less likely to result in neutralizing calculating behavior, and more likely to lead to a discussion about moral or normative aspects of business behavior. A higher awareness of the societal and environmental impact of business behavior may also increase firms’ willingness to invest in “beyondcompliance” behavior.

Whereas formal punishment communicates that legal norms have been breached, shaming communicates the message that social or moral norms have been offended. It is an expressive instrument that works through emotions such as the wish to be respected and the fear of being humiliated (Murphy and Harris 2007), and addresses consciences by expressing to the offender that he did not take his responsibilities toward the community.

Shaming, however, can easily result in humiliation and stigmatization of the offender. Reintegrative shaming theory predicts that stigmatization will make crime worse, whereas reintegrative shaming will prevent it (Braithwaite 1989). Reintegrative shaming means that public disapproval of the offense is combined with communicating trust in the offender’s willingness to improve (Makkai and Braithwaite 1994). The offender is addressed as a good person who committed a bad act. Shaming directed against the offender, instead of inviting him to show his better self, will be experienced as stigmatizing. Stigmatizing will result in defiance and resistance of the offender and often also of the business community in general (Braithwaite 1989). The offender will refuse to acknowledge shame he feels inside or attempt to reason away his part in the offense or to neutralize the offense (Harris 2001; Braithwaite and Drahos 2002; Braithwaite et al. 2006; Murphy and Harris 2007).

Empirical research in responsive regulation has shown that offenders will only perceive shaming as reintegrative when performed by direct and respected peers. Shaming by officials is often experienced as stigmatizing, even when officials do not intend this (Makkai and Braithwaite 1994; Ahmed et al. 2001). Effective shaming therefore works best in a normative community of conscience between regulators, third parties, and business executives. In the case of white collar crime, however, consensus about the harmfulness of offenses, or a community of conscience formed by regulators, interest groups, and businesses will frequently be lacking (Parker 2006). Therefore, governments or NGOs should engage in formal, but respectful shaming, encouraging business actors to become reengaged in the substantial goals of the law. Although these formal shaming statements will unavoidably be experienced as stigmatizing to some extent, chances are that they will be translated in reintegrative shaming by peers – friends, family members, or colleagues or, internal compliance departments who have the capacity for reintegrative shaming.

In sum, shaming may work as a market incentive, as a deterrent “big stick” and as a form of moral education. Empirical research has shown that formal legal sanctions such as fines often fail to fulfill these functions. Naming and shaming therefore appears to compensate for some of the shortcomings of “traditional” legal financial sanctions. It is therefore often expected that naming and shaming is more effective in promoting compliance. What empirical evidence is available to support this claim?

Is Shaming Effective?

Several factors complicate the answer to the question whether shaming is effective in combating corporate crime. The first is the interdisciplinary character of research. The question of shaming addresses the interplay between business, NGOs, media, regulatory and enforcement authorities, and consumers, shareholders, and other stakeholders. An understanding of this interplay requires contributions from a variety of disciplines. Research into the effects of shaming is conducted within management science, economic science, law and society scholarship, empirical legal studies, social psychology, corporate governance research, business law, regulatory governance research, criminology, and media studies. While all these approaches provide valuable insights about effects of shaming, they also each depart from a particular theoretical perspective and study different types of shaming, complicating the aggregation and integration of research results.

A second complication in effect studies is the measurement of effects and causality. Concepts such as “reputation” and “shame” are intangible values which are difficult to measure. Several studies have attempted to solve this problem by measuring quantifiable consumer or shareholder reactions to publicized sanctions, such as fluctuations in sales, stock rates, or revenue after publication of offenses. Also, corporate reputation indices or media monitors may generate sophisticated indicators of corporate reputations following scandals. But although these measures may generate insight into the height of reputation sanctions, they do not answer the key causal question how the threat of reputation damage prevents corporate crime. The preventive, deterrent, or educative effects of naming and shaming depend on perceptions. Qualitative case-studies or interviews may give more in-depth explanations of the relation between naming and shaming and compliance, but the findings of these studies are context-dependent.

Given these limitations, a selection of important results from different disciplines may be highlighted. They shed some light on the effects and effectiveness of shaming.

A first line of research addresses the assumption that publication of offenses creates a market incentive by generating consumer reactions. Behavioral economic research and cognitive psychology have shown that markets where consumers act as rational information-processing “econs” are rare. Consumers struggle with an overload of information and make decisions under influence of cognitive biases. In particular, they value the status quo, meaning that they are loyal to their existing choices even if negative information about a firm becomes available. In line with the changed perspective on consumer decision making, several empirical studies of regulatory disclosure initiatives show that most of them did not evoke strong or consistent consumer reactions (Fung et al. 2007; Weil et al. 2006; Pawson 2002; Van Erp 2010; Kraft et al. 2011). Information about offending firms or unsafe products plays a less prominent role in consumer decision making than a consumer-oriented disclosure logic expects. Consumers do not actively gather information from regulatory agencies’ websites; fail to correctly understand the information; and, most importantly, do not act upon this information. They often remain loyal to firms despite their negative performance. In addition, firm’s legal compliance or even its socially responsible behavior often does not play a prominent role in consumer choices. This is not to say that naming offenders has no effect on business behavior, but the incentive generally does not come from consumer reactions to disclosed inspection results directly.

Two types of circumstances are suggested that alter this equation. The first is the type of stakeholder. It is often expected that shareholders are more active in seeking and processing information and act more rationally than consumers. Disclosed offenses of companies traded on the stock exchange are therefore expected to generate severe reputation sanctions in the shape of stock rate devaluation. Stock reactions to disclosed corporate offenses are also one of the most concrete indicators for actual reputation damage. Several research projects have therefore measured stock rate reactions to (for an overview, Van Erp 2011a). Research by Karpoff, Lee, and Martin (2008) shows that the disclosure of financial misrepresentation can lead to reputation sanctions that multiply the size of legal sanctions. Although part of this loss can be explained as a correction for the misrepresentation of the value of the company, or anticipation of costs of legal procedures and fines, the majority of this loss is reputation loss. Comparable studies in other regulatory arenas, however, find much lower stock rate reactions than those for financial misrepresentation. The publication of environmental offenses also leads to a drop in stock value, but this loss can be entirely accounted for by the costs of legal fines and restoration of the damage (Karpoff et al. 2005). There is no additional reputation sanction, because stockholders do not value the company less for its failure to comply with environmental regulations. Karpoff et al. conclude that investors will sooner impose a reputation sanction for an offense that damaged the interests of a firms’ contract partner, than for an offense that damages a third party or an intangible value such as the environment.

Second, active negative publicity, generated by public advocacy campaigns by NGOs, may trigger larger reputation sanctions than public disclosure of sanctions alone. Kagan, Gunningham, and Thornton (2011) summarize the combination of pressures on companies by describing how companies recognize three “licenses to operate”: the economic license (the obligation to meet the expectations of financial stakeholders); the legal license (compliance to law and permit conditions); and the social license: expectations from neighbors, employees, community groups, news media, and advocacy groups. Their research on pulp mills showed that firm’s environmental performance did not vary in relation to differences in their legal or economic license, but in relation to social license pressure. Naming and shaming corporate irresponsible actors may create large pressures on corporations to put an end to pollution and to improve their environmental policies. Indeed, many examples exist about successful campaigns that have forced corporations to withdraw from profitable, but damaging activities or even beyond-compliance behavior where companies voluntary exceed legal norms.

Adverse publicity may also have an implicit preventative effect in the sense that media exposure increases the visibility and public awareness of the damage of harmful corporate activities; thus increasing the legitimacy of public enforcement and creating support for new legislation. It may contribute to the development of self-regulation such as certification schemes and codes of conduct. In the absence of public enforcement, voluntary compliance of businesses to “soft law” can decrease damage to the environment and violations of human rights of laborers and local communities. This may provide an opportunity particularly for issues that exceed jurisdictions of individual countries, such as environmental harm, deforestation, and other extinctions of natural resources, or globalized production chains where Western producers produce goods in countries where public enforcement against businesses and legal protection of employees are weak. But is this more than a drop in the bucket? In an analysis of corporate social responsibility initiatives for working conditions in developing countries, for the environment, and for human rights; David Vogel (2005) concludes that the “market for virtue” is small. There is no business case for corporate social responsibility: Simply because consumers are not willing to pay higher prices and only a small proportion of investors are interested in CSR. For example, few industries have been as heavily shunned in the media as the tobacco industry; yet, investment in this industry has flourished and the stock rates of tobacco firms have outperformed other stock. Vogel therefore concludes that informal naming and shaming by NGOs cannot take the place of legally binding public law and strong enforcement.

It can be added that only a proportion of corporate offenses generate negative publicity because not all form attractive news stories. Likewise, a market reaction to negative publicity may not always occur. Firms invisible to the public and not known to end-consumers are unlikely to experience reputation sanctions, if they do not comply (Thornton et al. 2009). Likewise, companies facing bankruptcy, and monopoly actors do not depend on a good reputation. Finally, even when publicity causes significant reputational damage, this may not translate into better compliance because of large necessary investments in production technology or simply a lack of responsiveness of businesses (Kraft et al. 2011).

A last and entirely different line of research discussed here does not directly address firm’s reactions, but regulatory authorities’ shaming strategies and corporate reactions. Researchers in responsive regulation ask the question to what extent enforcement authorities are capable of powerful, yet reintegrative naming and shaming, as is expected in responsive regulation. Sometimes, regulators that lack powerful enforcement tools attempt to actively invoke negative publicity and publicly shame corporate officials by portraying them as irresponsible, greedy, or criminal. Casestudies have demonstrated that an active shaming strategy requires broad political and societal consensus about the harmfulness of the condemned behavior, and unquestioned authority of the regulatory agency as the messenger. Conversely, when regulators lack support and authority, their messages will invoke resistance and undermine business’ intrinsic motivations for compliance in the long run. They will also undermine the political support for the regulatory agency itself and result in attacks on its political legitimacy by the business community (Parker 2006).

It should be added that corporate offenders do not passively undergo adverse publicity, but actively attempt to manage publicity about their involvement in offenses. The ambiguous nature of corporate crime presents an opportunity for corporate officials to deny its harm by presenting their side of the story and to neutralize the severity of the offense or their responsibility (Braithwaite and Drahos 2002; Levi 2006). Defendants may even try to present themselves as victims of abusive regulators or prosecutors. For the media, initial reports of corporate crime may be salient news facts, but the newsworthiness of disclosed inspection results may decline over the course of the years, as happened in the 25-year existence of the American Environmental Protection Agency’s toxic release inventory (Kraft et al. 2011).

This illustrates the crucial role of the media in presenting the shaming message that regulatory actors attempt to broadcast. Media are no neutral intermediaries, reproducing the news as it is presented by legal authorities. By selecting, interpreting, and framing the news, they may reinforce the moral message that a punishing authority sends, but may also detach it of its shaming component. Thus, publicity can raise doubts about the rightfulness of enforcement and either remove the blame from, or even create sympathy for, business. Also, authorities’ accusations of businesses may lead to further questioning of the supervision practices that enabled business offenses to occur in the first place, resulting in the shaming to backfire to the enforcement agency (Almond 2009).

Last, enforcement authorities fear that adverse publicity will lead to disproportional reputation damage for firms that may damage the interests of employees and other firms or even the economy or financial system stability in the case of corporations “too big to fail.” Not surprisingly, then, many public regulators wish to avoid conflict, and revert to “naming without shaming”: formalistic, technical, and generic offender’s indexes or sanction registers using legal language rather than explicitly condemning corporate malpractice (Van Erp 2011b). As a result, shaming by enforcement agencies often does not contain the moral message, nor results in the negative publicity and reputation sanctions that would be required to trigger a broader debate about the harmfulness of the underlying behavior.

Future Developments And Directions For Research

The broad phrase “naming and shaming” may refer to a wide array of activities, aims and potential effects, and target groups addressed. Any naming and shaming policy or research should start by specifying the audience addressed and effects that are expected. Shaming may work as a market incentive, as a deterrent “big stick” and as a form of moral education. Often, these effects interact and reinforce each other. The impact of naming and shaming therefore often largely exceeds that of formal legal sanctions, and can be more effective in promoting compliance than “regular” enforcement. However, the effects of shaming cannot easily be predicted. The type of business and market; the existing reputation of the offender; the type of offense; the authority and legitimacy of the shaming actor; and the media all influence the amount and intensity of adverse publicity. It is clear that the process in which naming offenders and attempts to shame, translate to financial or immaterial reputation damage, and subsequently improves compliance of the offender and other firms, is a very complex process that is difficult to control. Case-studies of successful and failed shaming campaigns of both formal and informal regulators; media analyses of the nature of the media representation of corporate crime; and quantitative studies of the impact of disclosed offenses on business performance or compliance rates are necessary research strategies to contribute to theoretical understanding of the relations between naming, shaming, and corporate crime.

A few research topics in particular are relevant to mention here. First, a large part of enforcement against corporate offenses is performed by administrative regulatory agencies rather than criminal prosecutors. Disclosure of inspection results or sanctions in sanction registers, offenders indices or performance inventories, is more and more common for these administrative agencies in their quest for transparency and accountability. This may change the character of administrative enforcement, which is generally thought to generate less media attention and therefore to result in less stigma, less reputation damage, and less moral condemnation of white collar offenders. The increased powers of disclosure by administrative authorities may shift the balance between criminal and administrative enforcement regimes, because a publicized fine may result in more negative publicity than a criminal verdict, which is often anonymous. One of the few studies in this area reveals unexpected differences in press coverage of cartels in Germany. In Germany, cartel offenses of firms are regulated by federal administrative law, whereas cartel offenses of individuals are enforced under criminal law. The administrative cartel authority issues press releases, naming offending companies. Public prosecutors however do not systematically issue press releases and do not reveal the names of perpetrators.

Accordingly, press coverage about bid-rigging prosecutions and convictions is much sparser than press coverage of administrative fines in Germany. “This is the opposite of the effect one would usually expect – that the increased saliency of criminal cases would lead to wider reporting” (Wagner 2011).

The effects of the rise of new and social media on corporate reputations are another important topic for future research. The impact of shaming is already highly dependent on crowd dynamics, but the new media may increase the unpredictability of the reactions to public disclosure of offenders’ names even more. Publication of offenses on the internet results in long-lasting blame for small offenders, whereas more professional or strategic firms may replace negative news by a proactive public relations strategy.

Intensified disclosure also increases the risk that firms manipulate performance scores as these become increasingly important. In other words, disclosure intended to prevent fraud, at the same time, creates new opportunities for fraud. It should also be taken into account that media are corporate actors themselves, who may be connected to corporations involved in illegal activities. Business interests may influence the way in which corporate crime is being reported. Corporate involvement in crimes could be less likely to generate negative publicity when the corporations it concerns are active advertisers on the news networks that report the crimes.

Last, the topic of shaming illustrates that state control of corporate and white collar crime does not operate in isolation from social control. In order to understand how external pressures are translated in firm’s actions, a multidisciplinary approach is required which combines criminology with governance studies and management science.

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