Written by Theo Mandel, Ph.D., UX Design Consultant  

Websites and mobile applications are often designed to entice or persuade consumers and users to behave in certain ways, such as signing up for services or purchasing products and services. Most of these products use common industry user interface (UI) and user experience (UX) design techniques that are based on our knowledge of human psychology and a body of knowledge regarding common design techniques and patterns.

In the last 10 years, web and software design has evolved to include more marketing- and persuasion-oriented design techniques. B.J. Fogg, the founder of the Stanford Persuasive Technology Lab, described Persuasive Technology as “Technology that is designed to change attitudes or behaviors of the users through persuasion and social influence, but not through coercion.” These techniques are based on social psychology and current marketing principles to encourage emotional responses from consumers and to establish trust.

However, some companies have gone beyond using persuasion to promote their products and services to purposefully deceiving consumers by hiding or obscuring the truth about their products and services. The proliferation of this practice prompted the Federal Trade Commission (FTC) to update their 2000 consumer protection document, the .com Disclosures, in 2013 to address online advertising, marketing, and sales in the digital and mobile marketplace.

Some examples of software designs that are coercive include:

  • Interfaces that are easy to get in it, but hard to get out of
  • Free trials or subscriptions that aren’t easy to cancel
  • Hidden costs added on at the end of process
  • Trick questions and deceptive form design (negative options that are pre-selected where the consumer must explicitly un-select)
  • Text effects and text contrast that make it difficult for consumers to read information
  • Information is hidden behind difficult to see or find links or hovers.

Typically, cognitive psychologists and User Experience (UX) professionals design, prototype, redesign, and review websites and mobile applications and conduct user research to build products that meet the needs of end-users and consumers. The understanding of historical psychological principles has been used to create and publish design guidelines. For example, the US Health and Human Services (HHS) research-based Web Usability Guidelines. Product design goals should be to build software products that people can use to perform their tasks effectively and efficiently and enjoy the user experience.

In legal cases involving online deception and fraud, cognitive psychologists and UX professionals are sought as experts to review and analyze software product designs. With a background in the research and understanding of human behavior, such as cognition, perception, reading, comprehension, and learning, cognitive psychologists can address the history, development, and use of psychological principles, design guidelines and standards and their use and misuse in software product design. In typical software design, the end-users or consumer’s goals are paramount, so designs are focused on achieving those goals. In deceptive designs, the business goals are paramount, sacrificing truth and trust about products that end-users and consumers should have access to when making informed choices about purchasing products and services.

The job of the cognitive psychologist in this type of litigation is to show that the software design under investigation is consistently and intentionally deceptive and fraudulent, violating common design and usability standards and guidelines, rather than just the result of poor or uninformed software design.

Other legal cases that utilize cognitive psychologists as experts include patent litigation regarding user interface designs and techniques in desktop and mobile websites and applications. Software licensing cases may also utilize cognitive psychologists to review and analyze software products to determine if they are the same product, redesigns of a product or if they are actually different products.